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367 U.S. 740
81 S.Ct. 1784
6 L.Ed.2d 1141
INTERNATIONAL ASSOCIATION OF MACHINISTS et al., Appellants,v.S. B. STREET et al.
No. 4.
Reargued Jan. 17, 18, 1961.
Decided June 19, 1961.
[Syllabus from pages 740-742 intentionally omitted]
Messrs. Lester P. Schoene and Milton Kramer, Washington, D.C., for appellants.
Mr. Sol. Gen. J. Lee Rankin, Washington, D.C., for the United States as intervenor.
Mr. E. Smythe Gambrell, Atlanta, Ga., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A group of labor organizations, appellants here, and the carriers comprising the Southern Railway System, entered into a union-shop agreement pursuant to the authority of § 2, Eleventh of the Railway Labor Act.1 The agre ment requires each of the appellees, employees of the carriers, as a condition of continued employment, to pay the appellant union representing his particular class of craft the dues, initiation fees and assessments uniformly required as a condition of acquiring or retaining union membership. The appellees, in behalf of themselves and of employees similarly situated, brought this action in the Superior Court of Bibb County, Georgia, alleging that the money each was thus compelled to pay to hold his job was in substantial part used to finance the campaigns of candidates for federal and state offices whom he opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which he disagreed. The Superior Court found that the allegations were fully proved2 and entered a judgment and decree enjoining the enforcement of the union-shop agreement on the ground that § 2, Eleventh violates the Federal Constitution to the extent that it permits such use by the appellants of the funds exacted from employees.3 The Supreme Court of Georgia affirmed, 215 Ga. 27, 108 S.E.2d 796.4 On appeal to this Court under 28 U.S.C. § 1257(1), 28 U.S.C.A. § 1257(1), we noted probable jurisdiction, 361 U.S. 807, 80 S.Ct. 84, 4 L.Ed.2d 54.
I.
2
The Hanson Decision.
3
We held in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, that enactment of the provision of § 2, Eleventh authorizing union-shop agreements between interstate railroads and unions of their employees was a valid exercise by Congress of its powers under the Commerce Clause and did not violate the First Amendment or the Due Process Clause of the Fifth Amendment. It is argued that our disposition of the First Amendment claims in Hanson disposes of appellees' constitutional claims in this case adversely to their contentions. We disagree. As appears from its history, that case decided only that § 2, Eleventh, in authorizing collective agreements conditioning employees' continued employment on payment of union dues, initiation fees and assessments, did not on its face impinge upon protected rights of association. The Nebraska Supreme Court in Hanson, upholding the employees' contention that the union shop could not constitutionally be enforced against them, stated that the union shop 'improperly burdens their right to work and infringes upon their freedoms. This is particularly true as to the latter because it is apparent that some of these labor organizations advocate political ideas, support political candidates, and advance national economic concepts which may or may not be of an employee's choice.' Hanson v. Union Pac. R. Co., 160 Neb. 669, 697, 71 N.W.2d 526, 546. That statement was made in the context of the argument that compelling an individual to become a member of an organization with political aspects is an infringement of the constitutional freedom of association, whatever may be the constitutionality of compulsory financial support of group activities outside the political process. The Nebraska court's reference to the support of political ideas, candidates, and economic concepts 'which may or may not be of an employee's choice' indicates that it was considering at most the question of compelled membership in an organization with political facets. In their brief in this Court the appellees in Hanson argued that First Amendment rights would be infringed by the enforcement of an agreement which would enable compulsorily collected funds to be used for political purposes. But there was nothing concrete in the record to show the extent to which the unions were actually spending money for political purposes and what these purposes were, nothing to show the extent to which union funds collected from members were being used to meet the costs of political activity and the mechanism by which this was done, and nothing to show h at the employees there involved opposed the use of their money for any particular political objective.5 In contrast, the present record contains detailed information on all these points, and specific findings were made in the courts below as to all of them. When it is recalled that the action in Hanson was brought before the union-shop agreement became effective and that the appellees never thereafter showed that the unions were actually engaged in furthering political causes with which they disagreed and that their money would be used to support such activities, it becomes obvious that this Court passed merely on the constitutional validity of § 2, Eleventh of the Railway Labor Act on its face, and not as applied to infringe the particularized constitutional rights of any individual. On such a record, the Court could not have done more, consistently with the restraints that govern us in the adjudication of constitutional questions and warn against their premature decision. We therefore reserved decision of the constitutional questions which the appellees present in this case. We said: 'It is argued that complusory membership will be used to impair freedom of expression. But that problem is not presented by this record. * * * if the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the Fifth Amendment, this judgment will not prejudice the decision in that case. For we pass narrowly on § 2, Eleventh of the Railway Labor Act. We only hold that the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work is within the power of Congress under the Commerce Clause and does not violate either the First or the Fifth Amendments.' Id., 351 U.S. at page 238, 76 S.Ct. at page 721. See also 351 U.S. at page 242, 76 S.Ct. at page 723 (concurring opinion). Thus all that was held in Hanson was that § 2, Eleventh was constitutional in its bare authorization of union-shop contracts requiring workers to give 'financial support' to unions legally authorized to act as their collective bargaining agents. We sustained this requirement—and only this requirement—embodied in the statutory authorization of agreements under which 'all employees shall become members of the labor organization representing their craft or class.' Clearly we passed neither upon forced association in any other aspect nor upon the issue of the use of exacted money for political causes which were opposed by the employment.
4
The record in this case is adequate squarely to present the constitutional questions reserved in Hanson. These are questions of the utmost gravity. However, the restraints against unnecessary constitutional decisions counsel against their determination unless we must conclude that Congress, in authorizing a union shop under § 2, Eleventh, also meant that the labor organization receiving an employee's money should be free, despite that employee's objection, to spend his money for political causes which he opposes. Federal statutes are to be so construed as to avoid serious doubt of their constitutionality. 'When the validit of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598. Each named appellee in this action has made known to the union representing his craft of class his dissent from the use of his money for political causes which he opposes. We have therefore examined the legislative history of § 2, Eleventh in the context of the development of unionism in the railroad industry under the regulatory scheme created by the Railway Labor Act to determine whether a construction is 'fairly possible' which denies the authority to a union, over the employee's objection, to spend his money for political causes which he opposes. We conclude that such a construction is not only 'fairly possible' but entirely reasonable, and we therefore find it unnecessary to decide the correctness of the constitutional determinations made by the Georgia courts.
II.
5
The Rail Unions and Union Security.
6
The history of union security in the railway industry is marked first, by a strong and long-standing tradition of voluntary unionism on the part of the standard rail unions;6 second, by the declaration in 1934 of a congressional policy of complete freedom of choice of employees to join or not to join a union; third, by the modification of the firm legislative policy against compulsion, but only as a specific response to the recognition of the expenses and burdens incurred by the unions in the administration of the complex scheme of the Railway Labor Act.
7
When the question of union security in the rail industry was first given detailed consideration by Congress in 19347 only one of the standard unions had security provisions in any of its contracts. The Brotherhood of Railroad Trainmen maintained a number of so-called 'percentage' contracts, requiring that in certain classes of employees represented by the Brotherhood, a specified percentage of employees had to belong to the union. These contracts applied only to yard conductors, yard brakemen and switchmen, and covered no more than 10,000 workers, about 1% of all rail employees. See letter from Joseph B. Eastman, Federal Coordinator of Transportation, to Chairman of the House Committee on Interstate and Foreign Commerce, June 7, 1934, H.R.Rep. No. 1944, 73d Cong., 2d Sess., pp. 14—16; testimony of James A. Farquharson, legislative representative of the Brotherhood of Railroad Trainmen, Hearings on H.R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., pp. 94—105.
8
During congressional consideration of the 1934 legislation, the rail unions attempted to persuade Congress not to preclude them from negotiating security arrangements. By amendments to the original proposal, they sought to assure that the provision which became § 2, Fifth should prevent the carriers from conditioning employment on membership in a company union but should exempt the standard unions from its prohibitions. The Trainmen, the only union which stood to lose existing contracts if the section was not limited to company unions, especially urged such a limitation. See statement of A. F. Whitney, president, S.Rep. No. 1065, 73d Cong., 2d Sess., pt. 2, p. 2; see also 78 Cong.Rec. 12372, 12376.
9
The unions succeeded in having the House incorporate such a limitation in the bill it passed. See H.R.Rep. No. 1944, 73d Cong., 2d Sess. 2, 6; 78 Cong.Rec. 11710—11720. But the Senate did not acquiesce. Eastman, a firm believer in complete freedom of employees in their choice of representatives, strongly opposed the limitation. He characterized it as 'vicious, because it strikes at the principle of freedom of choice which the bill is designed to protect. The prohibited practices acquire no virtue by being confined to so-called 'standard unions.' * * * Within recent years, the practice of tying up men's jobs with labor-union membership has crept into the railroad industry which theretofore was singularly clean in this respect. The practice has been largely in connection with company unions but not entirely. If genuine freedom of choice is to be the basis of labor relations under the Railway Labor Act, as it should be, then the yellow-dog contract, and its corollary, the closed shop, and the so-called 'percentage contract' have no place in the picture.' Hearings on S. 3266, Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., p. 157.8 Eastman's views prevailed in the Senate, and the House concurred in a final version of § 2, Fifth, providing that '(n)o carrier * * * shall require any person seeking employment to sign any contract or agreement promising to join or not to join a labor organization.' See 78 Cong.Rec. 12369—12376, 12382—12388, 12389—12398, 12400 12402, 12549—12555.
10
During World War II, the nonoperating unions made an unsuccessful attempt to obtain union security, incidental to an effort to secure a wage increase. Follown g the failure of negotiations and mediation, a Presidential Emergency Board was appointed. Two principal reasons were advanced by the unions. They urged that in view of their pledge not to strike for the duration and their responsibilities to assure uninterrupted operation of the railroads, they were justified in seeking to maintain their positions by union security arrangements. They also maintained that since they secured benefits through collective bargaining for all employees they represented, it was fair that the costs of their operations be shared by all workers. The Board recommended withdrawal of the request, concluding that the union shop was plainly forbidden by the Railway Labor Act and that in any event the unions had failed to show it necessity or utility. Presidential Emergency Board, appointed Feb. 20, 1943, Report of May 24, 1943; Supplemental Report, May 29, 1943. The Report said: '(T)he Board is convinced that the essential elements of the union shop as defined in the employees' request are prohibited by section 2 of the Railway Labor Act. The intent of Congress in this respect is made evident, with unusual clarity.' Supplemental Report, supra, p. 29.9 On the merits of the issue, the Board expressly rejected the claim that union security was necessary to protect the bargaining position of the unions: '(T)he unions are not suffering from a falling off in members. On the contrary, * * * membership has been growing and at the present time appears to be the largest in railroad history, with less than 10 percent nonmembership among the employees here represented.' Supplemental Report, p. 31. '(T)he evidence presented with respect to danger from predatory rivals seemed to the Board lacking in sufficiency; especially so in the light of the evidence concerning membership growth.' Ibid. '(N)o evidence was presented indicating that the unions stand in jeopardy by reason of carrier opposition. A few railroads were mentioned on which some of the unions do not represent a majority of their craft or class, and do not have bargaining relationships with the carrier. But the exhibits show that these unions are the chosen representatives of the employees on the overwhelming majority of the railroads, and that recognition of the unions is general. The Board does not find therefore that a sufficient case has been made for the necessity of additional protection of union status on the railroads.' Id., p. 32. The unions acceded to the Board's recommendation.
11
The question of union security was reopened in 1950.10 Congress then evaluated the proposal for authorizing the union shop primarily in terms of its relationship to the financing of the unions' participation in the machinery created by the Railway Labor Act to achieve its goals. The framework for fostering voluntary adjustments between the carriers and their employees in the interest of the efficient discharge by the carriers of their important functions with minimum disruption from labor strife has no statutory parallel in other industry. That machinery, the product of a long legislative evolution, is more complex than that of any other industry. The labor relations of interstate carriers have been a subject of congressional enactments since 1888.11 For a time, after World War I, Congress experimented with a form of compulsory arbitration.12 The experiment was unsuccessful. Congress has since that time consistently adhered to a regulatory policy which places the responsibility squarely upon the carriers and the unions mutually to work out settlements of all aspects of the labor relationship. That policy was embodied in the Railway Labor Act of 1926, 44 Stat. 577, which remains the basic regulatory enactment. As the Senate Report o the bill which became that law stated: 'The question was * * * presented whether the substitute (for the Act of 1920) should consist of a compulsory system with adequate means provided for its enforcement, or whether it was in the public interest to create the machinery for amicable adjustment of labor disputes agreed upon by the parties and to the success of which both parties were committed. * * * The committee is of opinion that it is in the public interest to permit a fair trial of the method of amicable adjustment agreed upon by the parties, rather than to attempt under existing conditions to use the entire power of the Government to deal with these labor disputes.' S.Rep. No. 606, 69th Cong., 1st Sess., p. 4. The reference to the plan 'agreed upon by the parties' was to 'the fact that the Railway Labor Act of 1926 came on the statute books through agreement between the railroads and the railroad unions on the need for such legislation. It is accurate to say that the railroads and the railroad unions between them wrote the Railway Labor Act of 1926 and Congress formally enacted their agreement.' Railway Employes' Dept. v. Hanson, supra, 351 U.S. at page 240, 76 S.Ct. at page 722 (concurring opinion). See generally Murphy, Agreement on the Railroads—The Joint Railway Conference of 1926, 11 Lab.L.J. 823.
12
'All through the (1926) act is the theory that the agreement is the vital thing in life.' Statement of Donald R. Richberg, Hearings on H.R. 7180, House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., pp. 15—16. The Act created affirmative legal duties on the part of the carriers and their employees 'to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise * * *.' § 2, First. See Texas & N.O.R. Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The Act also established a comprehensive administrative apparatus for the adjustment of disputes, in conferences between the parties, § 2, Second, Third and Fourth (now Sixth), and if nt so settled, in submissions to boards of adjustment, § 3, or the National Mediation Board, § 4. And the legislation expanded the already existing voluntary arbitration machinery, §§ 7, 8, 9.
13
A primary purpose of the major revisions made in 1934 was to strengthen the position of the labor organizations vis-a -vis the carriers, to tne end of furthering the success of the basic congressional policy of self-adjustment of the industry's labor problems between carrier organizations and effective labor organizations. The unions claimed that the carriers interfered with the employees' freedom of choice of representatives by creating company unions, and otherwise attempting to undermine the employees' participation in the process of collective bargaining. Congress amended § 2, Third to reinforce the prohibitions against interference with the choice of representatives, and to permit the employees to select nonemployee representatives. A new § 2, Fourth was added guaranteeing employees the right to organize and bargain collectively, and Congress made it the enforceable duty of the carriers 'to treat with' the representatives of the employees, § 2, Ninth. See Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. It was made explicit that the representative selected by a majority of any class or craft of employees should be the exclusive bargaining representative of all the employees of that craft or class. 'The minority members of a craft are thus deprived by the statute of the right, which they would otherwise possess, to choose a representative of their own, and its members cannot bargain individually on behalf of themselves as to matters which are properly the subject of collective bargaining.' Steele v. Louisville & N.R. Co., 323 U.S. 192, 200, 65 S.Ct. 226, 231, 89 L.Ed. 173. 'Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents * * *.' Id., 323 U.S. at page 202, 65 S.Ct. at page 232. In addition to thus strengthening the unions' status in relation to both the carriers and the employees, the 1934 Act created the National Railroad Adjustment Board and provided that the 18 employee representatives were to be chosen by the labor organizations national in scope. § 3. This Board was given jurisdiction to settle what are termed minor disputes in the railroad industry, primarily grievances arising from the application of collective bargaining agreements to particular situations. See Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460.
14
In sum, in prescribing collective bargaining as the method of settling railway disputes, in conferring upon the unions the status of exclusive representatives in the negotiation and administration of collective agreements, and in giving them representation on the statutory board to adjudicate grievances, Congress has given the unions a clearly defined and delineated role to play in effectuating the basic congressional policy of stabilizing labor relations in the industry. 'It is fair to say that every stage in the evolution of this railroad labor code was progressively infused with the purpose of securing self-adjustment between the effectively organized railroads and the equally effective railroad unions and, to that end, of establishing facilities for such self-adjustment by the railroad community of its own industrial controversies. * * * The assumption as well as the aim of that Act (of 1934) is a process of permanent conference and negotiation between the carriers on the one hand and the employees through their unions on the other.' Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 752—753, 65 S.Ct. 1282, 1303, 89 L.Ed. 1886 (dissenting opinion).
15
Performance of these functions entails the expenditure of considerable funds. Moreover, this Court has held that under the statutory scheme, a union's status as exclusive bargaining repree ntative carries with it the duty fairly and equitably to represent all employees of the craft or class, union and nonunion. Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187. The principal argument made by the unions in 1950 was based on their role in this regulatory framework. They maintained that because of the expense of performing their duties in the congressional scheme, fairness justified the spreading of the costs to all employees who benefited. They thus advanced as their purpose the elimination of the 'free riders'—those employees who obtained the benefits of the unions' participation in the machinery of the Act without financially supporting the unions.
16
George M. Harrison, spokesman for the Railway Labor Executives' Association, stated the unions' case in this fashion:
17
'Activities of labor organizations resulting in the procurement of employee benefits are costly, and the only source of funds with which to carry on these activities is the dues received from emembers of the organization. We believe that it is essentially unfair for nonmembers to participate in the benefits of those activities without contributing anything to the cost. This jis especially true when the collective bargaining representative is one from whose existence and activities he derives most important benefits and one which is obligated by law to extend these advantages to him.
18
'Furthermore, collective bargaining to the railroad industry is more costly from a monetary standpoint than that carried on in any other industry. The administrative machinery is more complete and more complex. The mediation, arbitration, and Presidential Emergency Board provisions of the act, while greatly in the public interest, are very costly to the unions. The handling of agreement disputes through the National Railroad Adjustment Board also requires expense which is not known to unions in outside industry.' Hearings on H.R. 7789, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., p. 10.
19
This argument was decisive with Congress. The House Committee Report traced the history of previous legislation in the industry and pointed out the duty of the union acting as exclusive bargaining representative to represent equally all members of the class. 'Under the act, the collective-bargaining representative is required to represent the entire membership of the craft or class, including nonunion members, fairly, equitably, and in good faith. Benefits resulting from collective bargaining may not be withheld from employees because they are not members of the union.' H.R.Rep. No. 2811, 81st Cong., 2d Sess., p. 4. Observing that about 75% or 80% of all railroad employees were believed to belong to a union, the report continued: 'Nonunion members, nevertheless, share in the benefits derived from collective agreements negotiated by the railway labor unions but bear no share of the cost of obtaining such benefits.' Ibid.13 These considerations overbore the arguments in favor of the earlier policy of complete individual freedom of choice. As we said in Railway Employes' Dept. v. Hanson, supra, 351 U.S. at page 235, 76 S.Ct. at page 720, '(t)o require, rather than to induce, the beneficiaries of trade unionism to contribute to its costs may not be the wisest course. But Congress might well believe that it would help insure the right to work in and along the arteries of interstate commerce. No more has been attempted here. * * * The financial support required relates * * * to the work of the union in the realm of collective bargaining.14 the conclusion to which this history clearly points is that § 2, Eleventh contemplated compulsory unionism to force employees to share the costs of negotiating and administering collective agreements, and the costs of the adjustment and settlement of disputes.15 One looks in vain for any suggestion h at Congress also meant in § 2, Eleventh to provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose.
III.
The Safeguarding of Rights of Dissent.
20
To the contrary, Congress incorporated safeguards in the statute to protect dissenters' interests. Congress became concerned during the hearings and debates that the union shop might be used to abridge freedom of speech and beliefs. The original proposal for authorization of the union shop was qualified in only one respect. It provided 'That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member * * *.' This was primarily designed to prevent discharge of employees for nonmembership where the union did not admit the employee to membership on racial grounds. See House Hearings, p. 68; Senate Hearings, pp. 22—25. But it was strenuously protested that the proposal provided no protection for an employee who disagreed with union policies or leadership. It was argued, for example, that 'the right of free speech is at stake. * * * A man could feel that he was no longer able freely to express himself because he could be dismissed on account of criticism of the union * * *.' House Hearings, p. 115; see also Senate Hearings, pp. 167—169, 320. Objections of this kind led the rail unions to propose an addition to the proviso to § 2, Eleventh to prevent loss of job for lack of union membership 'with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, fees, and assessments uniformly required as a condition of acquiring or retaining membership.' House Hearings, p. 247. Mr. Harrison presented this text and stated, 'It is submitted that this bill with the amendment as suggested in this statement remedies the alleged abuses of compulsory union membership as claimed by the opposing witnesses, yet makes possible the elimination of the 'free rider' and the sharing of the burden of maintenance by all of the beneficiaries of union activity.' House Hearings, p. 253. Mr. Harrison also sought to reassure Committee members as to the possible implications of other language of the proposed bill; he explained that 'fees' meant 'initiation fees,' and 'assessments' was intended primarily to cover the situation of a union which had only nominal dues, so that its members paid 'an assessment to finance the activities of the general negotiating committee * * * it will vary month by month, based on the expenses and work of that committee.' P. 257. Or, he explained, an assessment might cover convention expenses. 'So we had to use the word 'assessment' in addition to dues and fees because some of the unions collect a nominal amount of dues and an assessment month after month to finance part of the activities, although in total it perhaps is no different than the dues paid in the first instance which comprehended all of those expenses.' P. 258. In reporting the bill, the Senate Committee expressly noted the protective proviso, S.Rep.No. 2262, 81st Cong., 2d Sess., pp. 3—4, and affixed the Senate additiona limitations. The words 'not including fines and penalties' were added, to make it clear that termination of union membership for their nonpayment would not be grounds for discharge. It was also made explicit that 'fees' meant 'initiation fees.' See 96 Cong.Rec. 16267—16268.
21
A congressional concern over possible impingements on the interests of individual dissenters from union policies is therefore discernible. It is true that opponents of the union shop urged that Congress should not allow it without explicitly regulating the amount of dues which might be exacted or prescribing the uses for which the dues might be expended.16 We may assume that Congress was also fully conversant with the long history of intensive involvement of the railroad unions in political activities. But it does not follow that § 2, Eleventh places no restriction on the use of an employee's money, over his objection, to support political causes he opposes merely because Congress did not enact a comprehensive regulatory scheme governing expenditures. For it is abundantly clear that Congress did not completely abandon the policy of full freedom of choice embodied in the 1934 Act, but rather made inroads on it for the limited purpose of eliminating the problems created by the 'free rider.' That policy survives in § 2, Eleventh in the safeguards intended to protect freedom of dissent. Congress was aware of the conflicting interests involved in the question of the union shop and sought to achieve their accommodation. As was said by the Presidential Emergency Board which recommended the making of the union-shop agreement involved in this case:
22
'It is not as though Congress had believed it was merely removing some abstract legal barrier and not passing on the merits. It was made fully aware that it was deciding these critical issues of individual right versus collective interests which have been stressed in this proceeding.
23
'Indeed, Congress gave very concrete evidence that it carefully considered the claims of the individual to be free of arbitrary or unreasonable restrictions resulting from compulsory unionism. It did not give a blanket approval to union-shop agreements. Instead it enacted a precise and carefully drawn limitation on the kind of union-shop agreements which might be made. The obvious purpose of this careful prescription was to strike a balance between the interests pressed by the unions and the considerations which the Carriers have urged. By providing that a worker should not be discharged if he was denied or if he lost his union membership for any reason other than nonpayment of dues, initiation fees or assessments, Congress definitely indicated that it had weighed carefully and given effect to the policy of the arguments against the union shop.' Report of Presidential Emergency Board No. 98, appointed pursuant to Exec. Order No. 10306, Nov. 15, 1951, p. 6.
24
We respect this congressional purpose when we construe § 2, Eleventh as not vesting the unions with unlimited power to spend exacted money. We are not called upon to delineate the precise limits of that power in this case. We have before us only the question whether the power is restricted to the extent of denying the unions the rights, over the employee's objection, to use his money to support political causes which he opposes. Its use to support candidates for public office, and advance political programs, is not a use which helps defray the expenses of the negotiation or administration of collective agreements, or the expenses entailed in the adjustment of grievances and disputes. In other words, it is a use which falls clearly outside the reasons advanced by the unions and accepted by Congress why authority to make unionshop agreements was justified. On the other hand, it is equally clear that it is a use to support activities within the area of dissenters' interests which Cn gress enacted the proviso to protect. We give § 2, Eleventh the construction which achieves both congressional purposes when we hold, as we do, that § 2, Eleventh is to be construed to deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes.17
25
We express no view as to other union expenditures objected to by an employee and not made to meet the costs of negotiation and administration of collective agreements, or the adjustment and settlement of grievances and disputes. We do not understand, in view of the findings of the Georgia courts and the question decided by the Georgia Supreme Court, that there is before us the matter of expenditures for activities in the area between the costs which led directly to the complaint as to 'free riders,' and the expenditures to support union political activities.18 We are satisfied, however, that § 2, Eleventh is to be interpreted to deny the unions the power claimed in this case. The appellant unions, in insisting that § 2, Eleventh contemplates their use of exacted funds to support political causes objected to by the employee, would have us hold that Congress sanctioned an expansion of historical practices in the political area by the rail unions. This we decline to do. Both by tradition and, from 1934 to 1951, by force of law, the rail unions did not rely upon the compulsion of union security agreements to exact money to support the political activities in which they engage. Our construction therefore involves no curtailment of the traditional political activities of the railroad unions. It means only that those unions must not support those activities, against the expressed wishes of a dissenting employee, with his exacted money.19
IV.
26
The Appropriate Remedy.
27
Under our view of the statute, however, the decision of the court below was erroneous and cannot stand. The appellees who have participated in this action have in the course of it made known to their respective unions their objection to the use of their money for the support of political causes. In that circumstance, the respective unions were without power to use payments thereafter tendered by them for such political causes. However, the union-shop agreement itself is not unlawful. Railway Employes' Dept. v. Hanson, supra. The appellees therefore remain obliged, as a condition of continued employment, to make the payments to their respective unions called for by the agreement. Their right of action stems not from constitutional limitations on Congress' power to authorize the union shop, but from § 2, Eleventh itself. In other words, appellees' grievance stems from the spending of their funds for purposes not authorized by the Act in the face of their objection, not from the enforcement of the union-shop agreement by the mere collection of funds. If their money were used for purposes contemplated by § 2, Eleventh, the appellees would have no grievance at all. We think that an injunction restraining enforcement of the union-shop agreement is therefore plainly not a remedy appropriate to the violation of the Act's restriction on expenditures. Restraining the collection of all funds from the appellees sweeps too broadly, since their objection is only to the uses to which some of their money is put. Moreover, restraining collection of the funds as the Georgia courts have done might well interfere with the appellant unions' performance of those functions and duties which the Railway Labor Act places upon them to attain its goal of stability in the industry. Even though the lower court decree is subject to modification upon proof by the appellants of cessation of improper expenditures, in the interim the prohibition is absolute against the collection of all funds from anyone who can show that he is opposed to the expenditure of any of his money for political purposes which he disapproves. The complete shutoff of this source of income defeats the congressional plan to have all employees benefited share costs 'in the realm of collective bargaining,' Hanson, 351 U.S. at page 235, 76 S.Ct. at page 720, and threatens the basic congressional policy of the Railway Labor Act for self-adjustments between effective carrier organizations and effective labor organizations.20
28
Since the case must therefore be remanded to the court below for consideration of a proper remedy, we think that it is appropriate to suggest the limits within which remedial discretion may be exercised consistently with the Railway Labor Act and other relevant public policies. As indicated, an injunction against enforcement of the union shop itself through the collection of funds is unwarranted. We also think that a blanket injunction against all expenditures of funds for the disputed purposes, even one conditioned on cessation of improper expenditures, would not be a proper exercise of equitable discretion. Nor would it be proper to issue an interim or temporary blanket injunction of this character pending a final adjudication. The Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §§ 101—115, 29 U.S.C.A. §§ 101—115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. However, the policy of the Act suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff's right. In Graham this Court found an injunction necessary to prevent the breach of the duty of fair representation, in order that Congress might not seem to have held out to the petitioners there 'an illusory right for which it was denying them a remedy.' 338 U.S. at page 240, 70 S.Ct. at page 18. No such necessity for a blanket injunctive remedy because of the absence of reasonable alternatives appears here. Moreover, the fact that these expenditures are made for political activities is an additional reason for reluctance to impose such an injunctive remedy. Whatever may be the powers of Congress or the States to forbid unions altogether to make various types of political expenditures, as to which the express to opinion here,21 many of the expenditures involved in the present case are made for the purpose of disseminating information as to candidates and programs and publicizing the positions of the unions on them. As to such expenditures an injunction would work a restraint on the expression of political ideas which might be offensive to the First Amendment. For the majority also has an interest in stating its views without being silenced by the dissenters. To attain the appropriate reconciliation between majority and dissenting interests in the area of political expression, we think the courts in administering the Act should select remedies which protect both interests to the maximum extent possible without undue impingement of one on the other.
29
Among possible remedies which would appear appropriate to the injury complained of, two may be enforced with a minimum of administrative difficulty22 and with little danger of encroachment on the legitimate activities or necessary functions of the unions. Any remedies, however, would properly be granted only to employees who have made known to the union officials that they do not desire their funds to be used for political causes to which they object. The safeguards of § 2, Eleventh were added for the protection of dissenters' interest, but dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee. The union receiving money exacted from an employee under a union-shop agreement should not in fairness be subjected to sanctions in favor of an employee who makes no complaint of the use of his money for such activities. From these considerations, it follows that the present action is not a true class action, for there is no attempt to prove the existence of a class of workers who had specifically objected to the exaction of dues for political purposes. See Hansberry v. Lee, 311 U.S. 32, 44, 61 S.Ct. 115, 119, 85 L.Ed. 22. Thus we think that only those who have identified themselves as opposed to political uses of their funds are entitled to relief in this action.
30
One remedy would be an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union's total expenditures made for such political activities to the union's total budget. The union should not be in a position to make up such sum from money paid by a nondissenter, for this would shift a disproportionate share of the costs of collective bargaining to the dissenter and have the same effect of applying his money to support such political activities. A second remedy would be restitution to each individual employee of that portion of his money which the union expended, despite his notification, for the political causes to which he had advised the union he was opposed. There should be no necessity, however, for the employee to trace his money up to and including its expenditure; if the money goes into general funds and no separate accounts of receipts and expenditures of the funds of individual employees are maintained, the portion of his money the employee would be entitled to recover would be in the same proportion that the expenditures for political purposes which he had advised the union he disapproved bore to the total union budget.
31
The judgment is reversed and the case is remanded to the court below for proceedings not inconsistent with this opinion.
32
Reversed and remanded.
33
Mr. Justice DOUGLAS, concurring.
34
Some forced associations are inevitable in an industrial society. One who of necessity rides busses and street cars does not have the freedom that John Muir and Walt Whitman extolled. The very existence of a factory brings into being human colonies. Public housing in some areas may of necessity take the form of apartment buildings which to some may be as repulsive as ant hills. Yet people in teeming communities often have no other choice.
35
Legislatures have some leeway in dealing with the problems created by these modern phenomena.
36
Collective bargaining is a remedy for some of the problems created by modern factory conditions. The beneficiaries are all the members of the laboring force. We therefore concluded in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, that it was permissible for the legislature to require all who gain from collective bargaining to contribute to its cost.1 That is the narrow and precise holding of the Hanson case, as Mr. Justice BLACK shows.
37
Once an association with others is compelled by the facts of life, special safeguards are necessary lest the spirit of the First, Fourth, and Fifth Amendments be lost and we all succumb to regimentation. I expressed this concern in Public Utilities Comm. v. Pollack, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (dissenting opinion), where a 'captive audience' was forced to listen to special radio broadcasts. f an association is compelled, the individual should not be forced to surrender any matters of conscience, belief, or expression. He should be allowed to enter the group with his own flag flying, whether it be religious, political, or philosophical; nothing that the group does should deprive him of the privilege of preserving and expressing his agreement, disagreement, or dissent, whether it coincides with the view of the group, or conflicts with it in minor or major ways; and he should not be required to finance the promotion of causes with which he disagrees.
38
In a debate on the Universal Declaration of Human Rights, later adopted by the General Assembly of the United Nations on December 10, 1948, Mr. Malik of Lebanon stated what I think is the controlling principle in cases of the character now before us:
39
'The social group to which the individual belongs, may, like the human person himself, be wrong or right: the person alone is the judge.'2
40
This means that membership in a group cannot be conditioned on the individual's acceptance of the group's philosophy.3 Otherwise, First Amendment rights are required to be exchanged for the group's attitude, philosophy, or politics. I do not see how that is permissible under the Constitution. Since neither Congress nor the state legislatures can abridge those rights, they cannot grant the power to private groups to abridge them. As I read the First Amendment, it forbids any abridgment by government whether directly or indirectly.
41
The collection of dues for paying the costs of collective bargaining of which each member is a beneficiary is one thing. If, however, dues are used, or assessments are made, to promote or oppose birth control, to repeal or increase the taxes on cosmetics, to promote or oppose the admission of Red China into the United Nations, and the like, then the group compels an individual to support with his money causes beyond what gave rise to the need for group action.
42
I think the same must be said when union dues or assessments are used to elect a Governor, A Congressman, a Senator, or a President. It may be said that the election of a Franklin D. Roosevelt rather than a Calvin Coolidge might be the best possible way to serve the cause of collective bargaining. But even such a selective use of union funds for political purposes subordinates the individual's First Amendment rights to the views of the majority. I do not see how that can be done, even though the objector retains his rights to campaign, to speak, to vote as he chooses. For when union funds are used for that purpose, the individual is required to finance political projects against which he may be in rebellion.4 The furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified brining the group together, the individual cannot withdraw his fiancial support merely because he disagrees with the group's strategy. If that were allowed, we would be reversing the Hanson case sub silentio. But since the funds here in issuea re used for causes other than defraying the costs of collective bargaining, I would affirm the judgment below with modifications. Although I recognize the strength of the arguments advanced by my Brothers BLACK and WHITTAKER against giving a 'proportional' relief to appellees in this case, there is the practical problem of mustering five Justices for a judgment in this case. Cf. Screws v. United States, 325 U.S. 91, 134. So I have concluded dubitante to agree to the one suggested by Mr. Justice BRENNAN, on the understanding that all relief granted will be confined to the six protesting employees. This suit, though called a 'class' action, does not meet the requirements as the use or nonuse of any dues or assessments depends on the choice of each individual, not the group. See Hansberry v. Lee, 311 U.S. 32, 44, 61 S.Ct. 115, 119, 85 L.Ed. 22.
43
Mr. Justice WHITTAKER, concurring in part and dissenting in part.
44
Understanding the Court's opinion to hold—put in my own words that, in enacting § 2, Eleventh of the Railway Labor Act, Congress intended to, and impliedly did, limit the use that railway labor unions may make of dues, fees and assessments, collected from those of its members who were or are required to become or remain its members by force of union shop contracts negotiated as permitted by that section, only to defray the costs of negotiating and administering collective bargaining agreements—including the adjustment and settlement of disputes—and that the Hanson case, rightly construed, upholds no more than that, I join Points I, II and III of the Court's opinion.
45
But I dissent from Point IV of the Court's opinion. In respect to that point, it seems appropriate to make the following observations. When many members pay the same amount of monh ly dues into the treasury of the union which dispenses the fund for what are, under the Court's opinion, both permitted and proscribed activities, how can it be told whose dues paid for what? Let us suppose a union with two members, each paying monthly dues of three dollars, and that one does not the other does not object to his dues being expended for 'proscribed activity'—whatever that phrase may mean. Of the dues for a given month, the union expends four dollars for admittedly proper activity and two dollars for 'proscribed activity,' answering to the objector that the two dollars spent for 'proscribed activity' were not from his, but from the other's, dues. Would not the result be that the objector was thus required to pay not his one-half but three-fourths of the union's legitimate expenses? Or, has not the objector nevertheless paid a ratable part of the cost of the 'proscribed activity'?
46
The Court suggests that a proper decree might require 'restitution' to the objector of that part of his dues that is equal to the ratio of dues spent for 'proscribed activity' to total dues collected by the union. But even if the Court could draw a clear line between what is and what is not 'proscribed activity,' the accounting and proof problems involved would make the remedy most onerous and impractical. But when there is added to this a full recognition of the practical impossibility of judicially drawing the clear line mentioned and also of the fact that the local unions which collect the dues promptly pay a part of them to the national union which, in turn, also engages in 'proscribed activity,' it becomes plain that the suggested restitution remedy is impossible of practical performance.
47
It would seem to follow that the only practical remedy possible is the one formulated by the Georgia court, and I would approve it.
48
Mr. Justice BLACK, dissenting.
49
This action was brought in a Georgia state court by six railroad employees1 in behalf of themselves 'and others similarly situated' against railroads making up the Southern Railway System, labor organizations representing employees of that system in collective bargaining, and a number of individuals, to enjoin anforcement and application to them of a union-shop agreement entered into between the railroads and the labor organizations as authorized by § 2, Eleventh of the Railway Labor Act.2 The agreement's terms required all employees, in order to keep their railroad jobs, to join the union and remain members, at least to the extent of tendering periodic dues, initiation fees and assessments, not including fines and penalties.3 The complaint, as amended, charged that the agreement was void because it conflicted with the laws and Constitution of Georgia and the First, Fifth, Ninth and Fourteenth Amendments to the Federal Constitution. Section 2, Eleventh provides that such union shops are valid '(n)otwithstanding any other * * * statute or law of the United States * * * or of any State.' Relying on our decision in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, which upheld contracts made pursuant to that section, the Georgia trial court dismissed the complaint as amended. The State Supreme Court reversed and remanded the case for trial, distinguishing our Hanson decision as follows:
50
'It is alleged that the union dues and other payments they will be required to make to the union will be used to § upport ideological and political doctrines and candidates' which they are unwilling to support and in which they do not believe, and that this will violate the First, Fifth and Ninth Amendments of the Constitution. While Railway Emp. Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, supra, upheld the validity of a closed shop contract executed under § 2, Eleventh, that opinion clearly indicates that that court would not approve a requirement that one join the union if his contributions thereto were used as this petition alleges. It is there said (headnote 3c), 'Judgment is reserved (italics in Georgia Supreme Court opinion) as to the validity or enforceability of a union or closed shop agreement if other conditions of union membership are imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First or the Fifth Amendment.' We must render judgment now upon this precise question. We do not believe one can constitutionally be compelled to contribute money to support ideas, politics and candidates which he opposes. * * *'4
51
On remand, testimony, admissions and stipulations showed without dispute that union funds collected from dues, fees and assessments were regularly used to support and oppose various political and economic programs, candidates, parties and ideological causes, and that the complaining employees were opposed to many of the positions the unions took in these matters. The trial court made lengthy findings, one crucial here being:
52
'Those funds have been and are being used in substantial amounts to propagate political and economic doctrines, concepts and ideologies and to promote legislative programs opposed by plaintiffs and the class they represent.' (108 S.E.2d 805.)
53
The trial court then found and declared § 2, Eleventh 'unconstitutional to the extent that it permits, or is applied to permit, the exaction of funds from plaintiffs and the class they represent for the complained of purposes and activities set forth above.' Compulsory membership under these circumstances was held to abridge First Amendment freedoms of association, thought, speech, press and political expression.5 On the basis of this holding the trial court enjoined all the defendants 'from enforcing the said union shop agreements * * * and from discharging petitioners, or any member of the class they represent, for refusing to become or remain members of, or pay periodic dues, fees, or assessments to, any of the labor union defendants, provided, however, that said defendants may at any time petition the court to dissolve said injunction upon a showing that they no longer are engaging in the improper and unlawful activities described above.' Again, the activities referred to were the use of union funds collected from fees, dues and assessments to support candidates, parties, or ideological, economic or political views contrary to the wishes of the complaining employees. The trial court also decreed that the three employees who had been compelled under protest to pay dues, fees and assessments because of the union-shop agreement were entitled to have those payments returned.
54
The Supreme Court of Georgia affirmed, holding that '(o)ne who is compelled to contribute the fruits of his labor to support or promote political or economic programs or support candidates for public office is just as much deprived of his freedom of speech as if he were compelled to give his vocal support to doctrines he opposes.'6 I fully agree with this holding of the Georgia Supreme Court and would affirm its judgment with certain modifications of the relief grat ed.
I.
55
Section 2, Eleventh of the Railway Labor Act authorizes unions and railroads to make union-shop agreements notwithstanding any other provision of state or federal law. Such a contract simply means that no person can keep a job with the contracting railroad unless he becomes a member of and pays dues to the contracting union. Neither § 2, Eleventh nor any other part of the Act contains any implication or even a hint that Congress wanted to limit the purposes for which a contracting union's dues should or could be spent. All the parties to this litigation have agreed from its beginning, and still agree, that there is no such limitation in the Act. The Court nevertheless, in order to avoid constitutional questions, interprets the Act itself as barring use of dues for political purposes. In doing this I think the Court is once more 'carrying the doctrine of avoiding constitutional questions to a wholly unjustifiable extreme.'7 In fact, I think the Court is actually rewriting § 2, Eleventh to make it mean exactly what Congress refused to make it mean. The very legislative history relied on by the Court appears to me to prove that its interpretation of § 2, Eleventh is without justification. For that history shows that Congress with its eyes wide open passed that section, knowing that its broad language would permit the use of union dues to advocate causes, doctrines, laws, candidates and parties, whether individual members objected or not.8 Under such circumstances I think Congress has a right to a determination of the constitutionality of the statute it passed, rather than to have the Court rewrite the statute in the name of avoiding decision of constitutional questions.
56
The end result of what the Court is doing is to distort this statute so as to deprive unions of rights I think Congress tried to give them and at the same time, in the companion case of Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191, leave itself free later to hold that integrated bar associations can constitutionally exercise the powers now denied to labor unions for fear of unconstitutionality. The constitutional question raised alike in this case and in Lathrop is bound to come back here soon with a record so meticulously perfect that the Court cannot escape deciding it. Should the Court then hold that lawyers and workers can constitutionally be compelled to pay for the support of views they are against, the result would be that the labor unions would have lost their case this year on a statutory-constitutional basis while the integrated bar would win its case next year or the year after on the ground that the constitutional part of the basis for the holding against the unions today was groundless. Yet no one has suggested that the Court's statutory construction of § 2, Eleventh could possibly be supported without the crutch of its fear of unconstitutionality. This is why I think the Court's avoidance of the constitutional issue in both cases today is wholly unfair to the unions as well as to Congress. I must consider this case on the basis of my belief as to the constitutionality of § 2, Eleventh, interpreted so as to authorize compulsion of workers to pay dues to a union for use in advocating causes and political candidates that the protesting workers are against.
II.
57
It is contended by the unions that precisely the same First Amendment question presented here was considered and decided in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714. I agree that it clearly was not. Section 2, Eleventh was challenged there before it became effective and the main grounds of attack, as our opinion noted, were that the union-shop agreement would deprive employees of their freedom of association under the First Amendment and of their property rights under the Fifth. There were not in the Hanson case, as there are here, allegations, proof and findings that union funds regularly were being used to support political parties, candidates and economic and ideological causes to which the complaining employees were hostile. Our opinion in Hanson carefully pointed to the fact that only general '(w)ideranged problems' were tendered under the First Amendment and that imposition of "assessments' * * * not germane to collective bargaining' would present 'a different problem.' The Court went on further to emphasize that if at another time 'the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case. * * * We only hold that the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work is within the power of Congress under the Commerce Clause and does not violate either the First or the Fifth Amendments.'9
58
Thus the Hanson case held only that workers could be required to pay their part of the cost of actual bargaining carried on by a union selected as bargaining agent under authority of Congress, just as Congress doubtless could have required workers to pay the cost of such bargaining had it chosen to have the bargaining carried on by the Secretary of Labor or any other appropriately selected bargaining agent. The Hanson case did not hold that railroad workers could be compelled by law to forego their constitutionally protected freedom of association by participating as union 'members' against their will. That case cannot, therefore, properly be read to rest on a principle which would permit government—in furtherance of some public interest, be that interest actual or imaginary—to compel membership in Rotary Clubs, fraternal organizations, religious groups, chambers of commerce, bar associations, labor unions, or any other private organizations Government may decide it wants to subsidize, support or control. In a word, the Hanson case did not hold that the existence of union-shop contracts could be used as an excuse to force workers to associate with people they do not want to associate with, or to pay their money to support causes they detest.
III.
The First Amendment provides:
59
'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'
60
Probably no one would suggest that Congress could, without violating this Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes. Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.
61
There is, of course, no constitutional reason why a union or other private group may not spend its funds for political or ideological causes if its members voluntarily join it and can voluntarily get out of it.10 Labor unions made up of voluntary members free to get in or out of the unions when they please have played important and luseful roles in politics and economic affairs.11 How to spend its money is a question for each voluntary group to decide for itself in the absence of some valid law forbidding activities for which the money is spent.12 But a different situation arises when a federal law steps in and authorizes such a group to carry on activities at the expense of persons who do not choose to be members of the group as well as those who do. Such a law, even though validly passed by Congress, cannot be used in a way that abridges the specifically defined freedoms of the First Amendment. And whether there is such abridgment depends not only on how the law is written but also on how it works.13
62
There can be no doubt that the federally sanctioned union-shop contract here, as it actually works, takes a part of the earnings of some men and turns it over to others, who spend a substantial part of the funds so received in efforts to thwart the political, economic and ideological hopes of those whose money has been forced from them under authority of law. This injects federal compulsion into the political and ideological processes, a result which I have supposed everyone would agree the First Amendment was particularly intended to prevent. And it makes no difference if, as is urged, political and legislative activities are helpful adjuncts of collective bargaining. Doubtless employers could make the same arguments in favor of compulsory contributions to an association of employers for use in political and economic programs calculated to help collective bargaining on their side. But the argument is equally unappealing whoever makes it. The stark fact is that this Act of Congress is being used as a means to exact money from these employees to help get votes to win elections for parties and candidates and to support doctrines they are against. If this § constitutional the First Amendment is not the charter of political and religious liberty its sponsors believed it to be. James Madison, who wrote the Amendment, said in arguing for religious liberty that 'the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.'14 And Thomas Jefferson said that 'to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.'15 These views of Madison and Jefferson authentically represent the philosophy embodied in the safeguards of the First Amendment. That Amendment leaves the Federal Government no power whatever to compel one man to expend his energy, his time or his money to advance the fortunes of candidates he would like to see defeated or to urge ideologies and causes he believes would be hurtful to the country.
63
The Court holds that § 2, Eleventh denies 'unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes.' While I do not so construe § 2, Eleventh, I want to make clear that I believe the First Amendment bars use of dues extorted from an employee by law for the promotion of causes, doctrines and laws that unions generally favor to help the unions, as well as any other political purposes. I think workers have as much right to their own views about matters affecting unions as they have to views about other matters in the fields of politics and economics. Indeed, some of their most strongly held views are apt to be precisely on the subject of unions, just as questions of law reform, court procedure, selection of judges and other aspects of the 'administration of justice' give rise to some of the deepest and most irreconcilable differences among lawyers. In my view, § 2, Eleventh can constitutionally authorize no more than to make a worker pay dues to a union for the sole purpose of defraying the cost of acting as his bargaining agent. Our Government has no more power to compel individuals to support union programs or union publications than it has to compel the support of political programs, employer programs or church programs. And the First Amendment, fairly construed, deprives the Government of all power to make any person pay out one single penny against his will to be used in any way to advocate doctrines or views he is against, whether economic, scientific, political, religious or any other.16
64
I would therefore hold that § 2, Eleventh of the Railway Labor Act, in authorizing application of the union-shop contract to the named protesting employees who are appellees here, violates the freedom of speech guarantee of the First Amendment.
IV.
The remedy:
65
The Georgia court enjoined the unions and the railroads from certain future activities under the contract and also required repayment of dues paid by three employees who had protested use of union funds to support candidates or advocate views the protesting employees were against.
66
I am not so sure as the Court that the injunction bars 'the collection of all funds from anyone who can show that he is opposed to the expenditure of any of his money for political purposes which he disapproves.' So construed the injunction would take away the First Amendment right of employees to contribute their money voluntarily to a collective fund to be used to support and oppose candidates and causes even though individual contributors might disagree with particular choices of the group. So far as it may be ambiguous in this respect, I think the injunction should be modified to make sure that it does not interfere with the valuable rights of citizens to mae their individual voices heard through voluntary collective action.
67
For much the same basic reasons I think the injunction is too broad in that it runs not only in favor of the six protesting employees but also in favor of the 'class they represent.' No one of that 'class' is shown to have protested at all. The State Supreme Court nevertheless rejected the unions' contention that the so-called class was so indefinite, and its members so lacking in common, identifiable interests and mental attitudes, that a decree purporting to bind all of them, the railroads, the individual defendants and the unions, would not comport with the due process requirements of the Fifth and Fourteenth Amendments. For reasons to be stated, I agree with this contention of the unions and consequently would hold that the judgment here cannot stand insofar as it purports finally to adjudicate rights as between the party defendants and railroad employees who were neither named party plaintiffs nor intervenors in the suit.
68
The trial court defined the 'class' as composed of 'all non-operating employees of the railroad defendants affected by, and opposed to, the * * * union shop agreements, who also are opposed to the collection and use of periodic dues, fees and assessments for support of ideological and political doctrines and candidates and legislative programs * * *.'17 (108 S.E.2d 802.) As applied to the facts here, this class, as defined, could include employees not only from Georgia, but also from Florida, Alabama, North Carolina, South Carolina, Tennessee, Louisiana, Illinois, Virginia, Ohio, Indiana, Missouri, Mississippi, Kentucky and the District of Columbia. Genuine class actions result in binding judgments either for or against each member of the class.18 Obviously, to make a judgment binding, the parties for or against whom it is to operate must be identifiable when the judgment is rendered. That would not be possible here since the only employees included in the class would be those who personally oppose the views they allege the union is using their dues to promote. This would make the 'class' depend on the views entertained by each member, views which may change from day to day or year to year. Under these circumstances, when this decree was rendered neither the court nor the adverse parties nor anyone else could know, with certainty, to what individuals the unions owed a duty under the decree. In Hansberry v. Lee, 311 U.S. 32, 44, 61 S.Ct. 115, 119, 85 L.Ed. 22, this Court pointed out the insuperable obstacles in attempting to treat as members of the same class parties to a contract such as the one here, some of whom might prefer to have the contract enforced and some of whom might not. Notice to persons whose rights are to be adjudicated is too important an element of our system of justice to permit a holding that this Georgia action has finally determined the issues for all the unidentifiable members of this 'class' of plaintiffs spread territorially all the way from Florida to Illinois and from the District of Columbia to Missouri. After all the class suit doctrine is only a narrow judicially created exception to the rule that a case or controversy involves litigants who have been duly notified and given an opportunity to be present in court either in person or by counsel.19 I would hold that there was no known common interest among the members of the described class here which justified this class action. From the very nature of the rights asserted, which depended on the unknown, perhaps fluctuating mental attitudes of employees, the rights of each employee were the basis for separable claims, in which the relief for each might vary as it did here as to the amount of damages awarded. Under these circumstances the class judgment should not stand.
69
The decree, modified to eliminate its class aspect, does not unconditionally forbid the application of the contract to all people under all circumstances, as did the one we struck down in the Hanson case. The decree so modified would simply forbid the use of the union-shop contract to bar employment of the six protesting employees so long as the unions do not discontinue the practice of spending union funds to support any causes or doctrines, political economic or other, over the expressed objection of the six particular employees. Other employees who have not protested are of course in the entirely different position of voluntary or acquiescing dues payers, which they have every right to be, and since they have asked for no relief the decree in this case should not affect them. Thus modified I think the relief afforded by the decree is justified.
70
The decree requires the union to refund dues, fees and assessments paid under protest by three of the complaining employees and exempts the six complaining employees from the payment of any union dues, fees or assessments so long as funds so received are used by the union to promote causes they are against. The state court found that these payments had been and would be made by these employees only because they had been compelled to join the union to save their jobs, despite their objections to paying the union so long as it used its funds for candidates, parties and ideologies contrary to these employees' wishes. The Court does not challenge this finding but nevertheless holds that relieving protesting workers of all payment of dues would somehow interfere with the union's statutory duty to act as a bargaining agent. In the first place, this would interfere with the union's activities only to the extent that it bars compulsion of dues payments from protesting workers to be used in some unknown part for unconstitutional purposes, and I think it perfectly proper to hold that such payments cannot be compelled. Furthermore, I think the remedy suggested by the Court will work a far greater interference with the union's bargaining activities because it will impose much greater trial and accounting burdens on both unions and workers. The Court's remedy is to give the wronged employees a right to a refund limited either to 'the proportion of the union's total expenditures made for such political activities' or to the 'proportion * * * (of) expenditures for political purposes which he had advised the union he disapproved.' It may be that courts and lawyers with sufficient skill in accounting, algebra, geometry, trigonometry and calculus will be able to extract the proper microscopic answer from the voluminous and complex accounting records of the local, national and international unions involved. It seems to me, however, that while the Court's remedy may prove very lucrative to special masters, accountants and lawyers, this formula, with its attendant trial burdens, promises little hope for financial recompense to the individual workers whose First Amendment freedoms have been flagrantly violated. Undoubtedly, at the conclusion of this long exploration of accounting intricacies, many courts could with plausibility dismiss the o rkers' claims as de minimis when measured only in dollars and cents.
71
I cannot agree to treat so lightly the value of a man's constitutional right to be wholly free from any sort of governmental compulsion in the expression of opinions. It should not be forgotten that many men have left their native lands, languished in prison, and even lost their lives, rather than give support to ideas they were conscientiously against. The three workers who paid under protest here were forced under authority of a federal statute to pay all current dues or lose their jobs. They should get back all they paid with interest.
72
Unions composed of a voluntary membership, like all other voluntary groups, should be free in this country to fight in the public forum to advance their own causes, to promote their choice of candidates and parties and to work for the doctrines or the laws they favor. But to the extent that Government steps in to force people to help espouse the particular causes of a group, that group—whether composed of railroad workers or lawyers—loses its status as a voluntary group. The reason our Constitution endowed individuals with freedom to think and speak and advocate was to free people from the blighting effect of either a partial or a complete governmental monopoly of ideas. Labor unions have been peculiar beneficiaries of that salutary constitutional principle, and lawyers, I think, are charged with a peculiar responsibility to preserve and protect this principle of constitutional freedom, even for themselves. A violation of it, however small, is in my judgment, prohibited by the First Amendment and should be stopped dead in its tracks on its first appearance. With so vital a principle at stake, I cannot agree to the imposition of parsimonious limitations on the kind of decree the courts below can fashion in their efforts to afford effective protection to these priceless constitutional rights.
73
I would affirm the judgment of the Georgia Supreme Court, with the modifications I have suggested.
74
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.
75
Appellant unions were the collective bargaining representatives of the 'nonoperating' employees of the Southern Railway. Appellees, six individual railway employees, commenced this action in the Superior Court of Bibb County, Georgia, seeking a declaration of invalidity and an injunction to prevent enforcement of a union-shop agreement, made under the authority of § 2, Eleventh of the Railway Labor Act, as amended in 1951, on the ground that the contract was in violation of Georgia law and rights secured by the First, Fifth, Ninth, and Tenth Amendments of the United States Constitution. The suit was brought as a class action on behalf of 'all those employees or former employees of the railroad defendants affected by and opposed to the union-shop agreement who are also opposed to the use of the periodic dues, fees and assessments which they have been, are and will be required to pay to support ideological and political doctrines and candidates and legislative programs. * * *' The monthly dues ranged from $2.25 to $3. The petition alleged that the plaintiffs opposed and were unwilling voluntarily to support the 'ideological and political doctrines and candidates' for which union dues and assessments were collected under the union-shop agreement and would be used 'in substantial part * * * to support.'
76
The Georgia trial court's decision dismissing the complaint for failure to state a cause of action was reversed by the Supreme Court of Georgia. Looper v. Georgia, Southern & Florida R. Co., 213 Ga. 279, 99 L.Ed. 101. Upon remand, the parties stipulated the above allegations and the plaintiffs offered proof of the amount of union funds which went to the legislative, political and educational departments of the unions and the controlling organs of the AFL—CIO. The trial court made, inter alia, the following findings: the unions' funds had been expended in 'substantial amounts' to promoe political doctrines and legislative programs which the plaintiffs opposed; these funds had been used in 'substantial amounts to impose upon plaintiffs * * * conformity to those doctrines' (108 S.E.2d 802); such use of funds was 'not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents.' The need of unions to engage in what are loosely described as political activities as means of promoting—if not to achieving—the purposes of their existence, the extent to which this practice has become an essential part of the American labor movement and more particularly of railroad labor unions, the relation of these means to the ends of collective bargaining, were matters not canvassed at trial nor judicially noticed. Nor was it claimed that the slightest barrier had been interposed against the fullest exercise by the plaintiffs of their freedom of speech in any form or in any forum. Since these matters were not canvassed, no findings upon them were made.
77
The trial court permanently enjoined enforcement of the agreement so long as the unions continued to engage 'in the improper and unlawful activities described.' It declared § 2, Eleventh of the Railway Labor Act unconstitutional insofar as it permitted the exaction of dues utilized in promoting so-called political activities from union members disapproving such expenditures. The unions were also ordered to repay the dues and assessments previously paid by the individual plaintiffs. The Georgia Supreme Court affirmed this judgment, 215 Ga. 27, 108 S.E.2d 796, and on appeal to this Court, under 28 U.S.C. § 1257(1), 28 U.S.C.A. § 1257(1), probable jurisdiction was noted. 361 U.S. 807, 80 S.Ct. 84, 4 L.Ed.2d 54.
78
I completely defer to the guiding principle that this Court will abstain from entertaining a serious constitutional question when a statute may fairly be construed so as to avoid the issue, but am unable to accept the restrictive interpretation that the Court gives to § 2, Eleventh of the Railway Labor Act. After quoting the relevant canon for constitutional adjudication from United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061.1 Mr. Justice Cardozo for the whole court enunciated the complementary principle:
79
'But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered.' Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265.
80
The Court-devised precept against avoidable conflict with Congress through unnecessary constitutional adjudication is not a requirement to distort an enactment in order to escape such adjudication. Respect for the doctrine demands and only permits that we extract an interpretation which shies off constitutional controversy, provided such interpretation is consonant with a fair reading of a statute.
81
And so the question before us is whether § 2, Eleventh of the Railway Labor Act can untorturingly be read to bar activities of railway unions, which have bargained in accordance with federal law for a union shop, whereby they are forbidden to spend union dues for purposes that have uniformly and extensively been so long pursued as to have become commonplace, settled, conventional tradeunion practices. No consideration relevant to construction sustains such a restrictive reading.
82
The statutory provision cannot be meaningfully construed except against the background and presupposition of what is loosely called political activity of American trade unions in general and railroad unions in particular—activity indissolubly relating to the immediate economic and social concernst hat are the raison d'e tre of unions. It would be pedantic heavily to document this familiar truth of industrial history and commonplace of trade-union life. To write the history of the Brotherhoods, the United Mine Workers, the Steel Workers, the Amalgamated Clothing Workers, the International Ladies Garment Workers, the United Auto Workers, and leave out their so-called political activities and expenditures for them, would be sheer mutilation. Suffice it to recall a few illustrative manifestations. The AFL, surely the conservative labor group, sponsored as early as 1893 an extensive program of political demands calling for compulsory education, an eight-hour day, employer tort liability, and other social reforms.2 The fiercely contested Adamson Act of 1916, 39 Stat. 721, see Wilson v. New, 243 U.S. 332, 37 S.Ct. 298, 61 L.Ed. 755, was a direct result of railway union pressures exerted upon both the Congress and the President.3 More specifically, the weekly publication 'Labor'—an expenditure under attack in this case—has since 1919 been the organ of the railroad brotherhoods which finance it. Its files through the years show its preoccupation with legislative measures that touch the vitals of labor's interests and with the men and parties who effectuate them. This aspect—call it the political side—is as organic, as inured a part of the philosophy and practice of railway unions as their immediate bread-and-butter concerns.
83
Viewed in this light, there is a total absence in the text, the context, the history and the purpose of the legislation under review of any indication that Congress, in authorizing union-shop agreements, attributed to unions and restricted them to an artificial, non-prevalent scope of activities in the expenditure of their funds. An inference that Congress legislated regarding expenditure control in contradiction to prevailing practices ought to be better founded than on complete silence. The aim of the 1951 legislation, clearly stated in the congressional reports, was to eliminate 'free riders' in the industry4—to make possible 'the sharing of the burden of maintenance by all of the beneficiaries of union activity.'5 To suggest that this language covertly meant to encompass any less than the maintenance of those activities normally engaged in by unions is to withdraw life from law and to say that Congress dealt with artificialities and not with railway unions as they were and as they functioned.
84
The hearings and debates lend not the slightest support to a construction of the amendment which would restrict the uses to which union funds had, at the time of the union-shop amendment, been conventionally put. To be sure, the legislative record does not spell out the obvious. The absence of any showing of concern about unions' expenditures in 'political' areas—especially when the issue was briefly raised6—only buttresses the conclusion that Congress intended to leave unions free to do that which unions had been and were doing. It is surely fanciful to conclude that this verbal vacuity implies that Congress meant its amendment to be read as providing that members of the union may restrict their dues solely for financing the technical process of collective bargaining.
85
There were specific safeguards protective of minority rights. These safeguards were directed solely toward the protection of those who might otherwise find themselves barred from union membership—viz., Negroes and those who had been long-time opponents of the unions. The only e ference to free speech in the record of the enactment was made by the President of the Norfolk & Western Railroad Company during the hearings before the House Subcommittee. His remarks were related to restrictive provisions in some union constitutions which suppressed the right of a dissatisfied member to voice his criticism upon pain of expulsion.7 No such claim is remotely before us.8 The sole reason for clarifying the proviso to the amendment so that payment of dues was explicitly declared to be the only legitimate condition of union membership was the continuing fear of lack of protection for unpopular minorities. There is no mention of political expenditures in any of the references. From this wasteland of material it is strange to find not only that 'A congressional concern over possible impingements on the interests of individual dissenters from union policies is therefore discernible,' but so discernible that a construction must be placed upon he statute that neither its terms nor the accustomed habits of union life remotely justify.
86
None of the parties in interest at any time suggested the possibility that the statute be construed in the manner now suggested. Neither the United States, the individual dissident members, the railroad unions, the railroads, the AFL—CIO, the Railway Labor Executives' Association, nor any other amicus curiae suggested that the statute could be emasculated in the manner now proposed. Of course we are not confined by the absence of such a claim, but it is significant that a construction now found to be reasonable never occurred to the litigants in the two arguments here.
87
I cannot attribute to Congress that sub silentio it meant to bar railway unions under a union-shop agreement from expending their funds in their traditional manner. How easy it would have been to give at least a hint that such was its purpose. The claim that these expenditures infringe the appellees' constitutional rights under the First Amendment must therefore be faced.
88
In Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 719, this Court had to pass on the validity of § 2, Eleventh of the Railway Labor Act, which provided that union-shop agreements entered into between a carrier and a duly designated labor organization shall be valid notwithstanding any other 'statute or law of the United States, or Territory thereof, or of any State.'9 We held that in its exercise of the power to regulate commerce, 'the choice by the Congress of the union shop as a stabilizing force (in industrial disputes) seems to us to be an allowable one,' and that the plaintiffs' claims under the First and Fifth Amendments were without merit.
89
The record before the Court in Hanson clearly indicated that dues would be used to further what are normally described as political and legislative ends. And it surely can be said that the Court was not ignorant of a fact that everyone else knew. Union constitutions were in evidence which authorized the use of union funds for political magazines, for support of lobbying groups, and for urging union members to vote for union-approved candidates.10 The contention now raised by plaintiffs was succinctly stated by the Hanson plaintiffs in their brief.11 We indicated that we were deciding the merits of the complaint on all the allegations and proof before us. 'On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar.' 351 U.S., at page 238, 76 S.Ct. at page 721.
90
One would suppose that Hanson's reasoning disposed of the present suit. The Georgia Supreme Court, however, in reversing the initial dismissal of the action by the lower court, relied upon the following reservation in our opinion: 'if the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case.' 351 U.S. at page 238, 76 S.Ct. at page 721. The use of union dues to promote relevant and effective means of realizing the purposes for which unions exist does not constitute a utilization of dues 'as a cover for forcing ideological conformity' in any fair reading of those words. It will come as startling and fanciful news to the railroad unions and the whole labor movement that in using union funds for promoting and opposing legislative measures of concern to their members they were engaged in under-cover operations. 'Cover' implies a disguise, some sham; 'forcing * * * conformity' means coercing avowal of a belief not entertained. Plaintiffs here are in no way subjected to such suppression of their true beliefs or sponsorship of views they do not hold. Nor are they forced to join a sham organization which does not participate in collective bargaining functions, but only serves as a conduit of funds for ideological propaganda. A totally different problem than the one before the Court would be presented by provisions of union constitutions which in fact prohibited members from sponsoring views which the union opposed,12 or which enabled officers to sponsor views not representative of the union.
91
Nevertheless, we unanimously held that the plaintiffs in Hanson had not been denied any right protected by the First Amendment. Despite our holding, the gist of the complaint here is that the expenditure of a portion of mandatory funds for political objectives denies free speech—the right to speak or to remain silent—to members who oppose, against the constituted authority of union desires, this use of their union dues. No one's desire or power to speak his mind is checked or curbed. The individual member may express his views in any public or private forum asf reely as he could before the union collected his dues. Federal taxes also may diminish the vigor with which a citizen can give partisan support to a political belief, but as yet no one would place such an impediment to making one's views effective within the reach of constitutionally protected 'free speech.'
92
This is too fine-spun a claim for constitutional recognition. The framers of the Bill of Rights lived in an era when overhanging threats to conduct deemed 'seditious' and lettres de cachet were current issues. Their concern was in protecting the right of the individual freely to express himself—especially his political beliefs—in a public forum, untrammeled by fear of punishment or of governmental censure.
93
But were we to assume, arguendo, that the plaintiffs have alleged a valid constitutional objection if Congress had specifically ordered the result, we must consider the difference between such compulsion and the absence of compulsion when Congress acts as platonically as it did, in a wholly non-coercive way. Congress has not commanded that the railroads shall employ only those workers who are members of authorized unions. Congress has only given leave to a bargaining representative, democratically elected by a majority of workers, to enter into a particular contractual provision arrived at under the give-and-take of duly safeguarded bargaining procedures. (The statute forbids distortion of these procedures as, for instance, through racial discrimination. Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173.) Congress itself emphasized this vital distinction between authorization and compulsion. S.Rep. No. 2262, 81st Cong., 2d Sess. 2. And this Court in Hanson noted that 'The union shop provision of the Railway Labor Act is only permissive. Congress has not * * * required carriers and employees to enter into union shop agreements.' 351 U.S. at page 231, 76 S.Ct. at page 718. When we speak of the Government 'acting' in permitting the union shop, the scope and force of what Congress has done must be heeded. There is not a trace of compulsion involved—no exercise of restriction by Congress on the freedom of the carriers and the unions. On the contrary, Congress expanded their freedom of action. Congress lifted limitations upon free action by parties bargaining at arm's length.13
94
The plaintiffs have not been deprived of the right to participate in determining union policies or to assert their respective weight in defining the purposes for which union dues may be expended. Responsive to the actualities of our industrial society, in which unions as such play the role that they do, the law regards a union as a self-contained, legal personality exercising rights and subject to responsibilities wholly distinct from its individual members. See United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975. It is a commonplace of all organizations that a minority of a legally recognized group may at times see an organization' funds used for promotion of ideas opposed by the minority. The analogies are numerous. On the largest scale, the Federal Government expends revenue collected from individual taxpayers to propagandize ideas which many taxpayers oppose. Or, as this Court noted in Hanson, many state laws compel membership in the integrated bar as a prerequisite to practicing law,14 and the barassociation uses its funds to urge legislation of which individual members often disapprove. The present case is, as the Court in Hanson asserted, indistinguishable from the issues raised by those who find constitutional difficulties with the integrated bar.15 If our statement in Hanson carried any meaning, it was an unqualified recognition that legislation providing for an integrated bar, exercising familiar functions, is subject to no infirmity derived from the First Amendment. Again, under the Securities Exchange Act of 1934, Congress specifically authorized the formation of 'national securities associations,' membership in which is of practical necessity to many brokers and dealers.16 The Association has urged the passage of several legislative reforms17 which one can confidently assume did not represent the convictions of all members. To come closer to the heart of the immediate matter, is the union's choice of when to picket or to go out on strike unconstitutional? Picketing is still deemed also a form of speech,18 but surely the union's decision to strike under its statutory aegis as a bargaining unit is not an unconstitutional compulsion forced upon members who strongly oppose a strike, as minorities not infrequently do. Indeed, legislative reform intended to insure the fair representation of the minority workers in internal union politics19 would be redundant if, despite all precautions, the union were constitutionally forbidden because of minority opposition to spend money in accordance with the majority's desires.
95
How unrealistic the views of plaintiffs are becomes manifest in light of the purpose of the legislative scheme in authorizing the union shop and the practical necessity for unions to participate in what as a matter of analytical fragmentation may be called political activities. The 1951 Amendment of the Railway Labor Act, which enacted § 2, Eleventh, was passed in an effort to make more equitable the sharing of costs of collective bargaining among all the workers whom the bargaining agent represented. H.R.Rep. No. 2811, 81st Cong., 2d Sess. 4; Hearings, House Committee on Interstate and Foreign Commerce on H.R. 7789, 81st Cong., 2d Sess. 10, 11, 29, 49—50; Hearings, Subcommittee of the Senate Committee on Labor and Public Welfare on S. 3295, 81st Cong., 2d Sess. 15—16. 130, 154, 170. Prior to the passage of this Amendment, there was no way in which the union could compel non-union members in the bargaining unit to contribute to the expenses incurred in seeking contractual provisions from the carrier that would redound to the advantage of all its employees. The main reason why prior law had forbidden union shops in the railroad industry is stated in the Senate Report to the 1951 Amendment:
96
'The present prohibitions against all forms of union security agreements and the check-off were made part of the Railway Labor Act in 1934. They were enacted into law against the background of employer use of these agreements as devices for establishing and maintaining company unions, thus effectively depriving a substantial number of employees of their right to bargain collectively. It is estimated that in 1934 there were over 700 agreements between the carriers and unions alleged to be company unions. These agreements represented over 20 percent of the total number of agreements in the industry.
97
'It was because of this situation that labor organizations agreed to the present statutory prohibitions against union security agreements. An effort was made to limit the prohibition to company unions. This, however, proved unsuccessful; and in order to reach the problem of company control over unions, labor organizations accepted the more general prohibitions which also deprived the national organizations of seeking union security agreements and check-off provisions. * * *
98
'Since the enactment of the 1934 amendments, company unions have practically disappeared.' S.Rep.No. 2262, 81st Cong., 2d Sess. 2—3. See also H.R.Rep. No. 2811, 81st Cong., 2d Sess. 3.
99
Nothing was further from congressional purpose than to be concerned with restrictions upon the right to speak. Its purpose was to eliminate 'free riders' in the bargaining unit. Inroads on free speech were not remotely involved in the legislative process. They were in nobody's mind. Congress legislated to correct what it found to be abuses in the domain of promoting industrial peace. This Court would stray beyond its powers were it to erect a far-fetched claim, derived from some ultimate relation between an obviously valid aim of legislation and an abstract conception of freedom, into a constitutional right.
100
For us to hold that these defendant unions may not expend their moneys for political and legislative purposes would be completely to ignore the long history of union conduct and its pervasive acceptance in our political life. American labor's initial role in shaping legislation dates back 130 years.20 With the coming of the AFL in 1886, labor on a national scale was committed not to act as a class party but to maintain a program of political action in furtherance of its industrial standards.21 British trade unions were supporting members of the House of Commons as early as 1867.22 The Canadian Trades Congress in 1894 debated whether political action should be the main objective of the labor force.23 And in a recent Australian case, the High Court upheld the right of a union to expel a member who refused to pay a political levy.24 That Britain, Canada and Australia have no explicit First Amendment is beside the point. For one thing, the freedoms safeguarded in terms in the First Amendment are deeply rooted and respected in the British tradition, and are part of legal presuppositions in Canada and Australia. And in relation to our immediate concern, the British Commonwealth experience establishes the pertinence of political means for realizing basic trade-union interests.
101
The expenditures revealed by the AFL—CIO Executive Council Reports emphasize that labor's participation in urging legislation and candidacies is a major one. In the last three fiscal years, the Committee on Political Education (COPE) expended a total of $1,681,990.42; the AFL-CIO News cost $756,591.99; the Legislative Department reported total expenses of $741,918.24.25 Yet the Georgia trial court has found that these funds were not reasonably related to the unions' role as collective bargaining agents. One could scarcely call this a finding of fact by which this Court is bound, or even one of law. It is a baseless dogmatic assertion that flies in the face of fact. It rests on a mere listing of unions' expenditures and an exhibit of labor publications. The passage of the Adamson Act26 in 1916, establishing the eight-hour day for the railroad industry, affords positive proof that labor may achieve its desired result through legislation after bargaining techniques fail. See Wilson v. New, supra, 243 U.. at pages 340—343, 37 S.Ct. at pages 298 299. If higher wages and shorter hours are prime ends of a union in bargaining collectively, these goals may often be more effectively achieved by lobbying and the support of sympathetic candidates. In 1960 there were at least eighteen railway labor organizations registered as congressional lobby groups.27
102
When one runs down the detailed list of national and international problems on which the AFL-CIO speaks, it seems rather naive for a court to conclude—as did the trial court—that the union expenditures were 'not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents.' The notion that economic and political concerns are separable is pre-Victorian. Presidents of the United States and Committees of Congress invite views of labor on matters not immediately concerned with wages, hours, and conditions of employment.28 And this Court accepts briefs as amici from the AFL-CIO on issues that cannot be called industrial, in any circumscribed sense. It is not true in life that political protection is irrelevant to, and insulated from, economic interests. It is not true for industry of finance.29 Neither is it true for labor. It disrespects the wise, hardheaded men who were the authors of our Constitution and our Bill of Rights to conclude that their scheme of government requires what the facts of life reject. As Mr. Justice Rutledge stated: 'To say that labor unions as such have nothing of value to contribute to that process (the electoral process) and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing inter-relationship in modern society.' United States v. C.I.O., 335 U.S. 106, 129, 144, 68 S.Ct. 1349, 1368, 92 L.Ed. 1849 (concurring opinion joined in by Black, Douglas, and Murphy, JJ.). Fifty years ago this Court held that there was no connection between outlawry of 'yellow dog contracts' on interstate railroads and interstate commerce, and therefore found unconstitutional legislation directed against the evils of these agreements. Is it any more consonant with the facts of life today, than was this holding in Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436, to say that the tax policies of the National Government the scheme of rates and exemptions—have no close relation to the wages of workers; that legislative developments like the Tennessee Valley Authority do not intimately touch the lives of workers within their respective regions; that national measures furthering health and education do not directly bear on the lives of industrial workers; that candidates who support these movements do not stand in different relation to labor's narrowest economic interests than avowed opponents of these measures? Is it respectful of the modes of thought of Madison and Jefferson projected into our day to attribute to them the view that the First Amendment must be construed to bar unions from concluding, by due procedural steps, that civilrights legislation conduces to their interest, thereby prohibiting union funds to be expended to promote passage of such measures?30
103
Congress was not unaware that railroad unions might use these mandatory contributions for furthering their economic interests through political channels. See 96 Cong.Rec. 17049—17050. That such consequences from authorizing compulsory union membership were to be foreseen had been indicated to committees of Congress less than four years earlier when the union-shop provisions of the Taft-Hartley Act were being debated. Hearings, Senate Committee on Labor and Public Welfare on S. 55, 80th Cong., 1st Sess., pp. 726, 1452, 1455—1456, 1687. 2065, 2146, 2150; Hearings, House Committee on Education and Labor on H.R. 8, 80th Cong., 1st Sess., pp. 350, 2260. The failure of the Railway Labor Act amendments to exempt the member who did not choose to have his contributions put to such uses may have reflected difficulties in drafting an exempting clause. See Hearings, Subcommittee of the Senate Committee on Labor and Public Welfare on S. 3295, 81st Cong., 2d Sess., pp. 173 174. But in 1958, the Senate voted down a proposal to enable an individual union member to recover any portion of his dues not expended for 'collective bargaining purposes.' 104 Cong.Rec. 11330 11347.
104
Congress is, of course, free to enact legislation along lines adopted in Great Britain, whereby dissenting members may contract out of any levies to be used for political purposes.31 'At the point where the mutual advantage of association demands too much individual disadvantage, a compromise must be struck. * * * When that point has been reached—where the intersection should fall—is plainly a question within the special province of the legislature. * * * Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court debilitates popular democratic government. Most laws dealing with economic and social problems are matters of trial and error. * * * But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests—the people.' American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 546, 553, 69 S.Ct. 258, 262, 93 L.Ed. 222 (concurring opinion).
105
In conclusion, then, we are asked by union members who oppose these expenditures to protect their right to free speech—although they are as free to speak as ever—against governmental action which has permitted a union elected by democratic process to bargain for a union shop and to expend the funds thereby collected for purposes which are controlled by internal union choice. To do so would be to mutilate a scheme designed by Congress for the purpose of equitably sharing the cost of securing the benefits of union exertions; it would greatly embarrass if not frustrate conventional labor activities which have become institutionalized through time. To do so is to give constitutional sanction to doctrinaire views and to grant a miniscule claim constitutional recognition.
106
In Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, the legislative power of a State to subsidize bus service to parochial schools was sustained, although the Court recognized that because of the subsidy some parents were undoubtedly enabled to send their children to church schools who otherwise would not. It makes little difference whether the conclusion is phrased so that no establishment to religion was found, or whether it be more forthrightly stated that the merely incidental 'establishment' was too insignificant. Figures of the Department of Health, Education and Welfare show that the yearly cost of transportation to non-public schools in Massachusetts totals approximately $659,749; In Illinois $1,807,740.32 These are scarcely what would be termed negligible expenditures. Some might consider the resulting 'establishment' more substantial than the loss of free speech through the payment of $3 per month for union dues, whereby a dissident member feels identified in his own mind with the union's position.
107
The words of Mr. Justice Cardozo, used in a different context, are applicable here: '(C)ountless claims of right can be discovered to have their source or their operative limits in the provisions of a federal statute or in the Constitution itself with its circumambient restrictions upon legislative power. To set bounds to the pursuit, the courts have formulated the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible. We shall be lost in a maze if we put that compass by.' Gully v. First National Bank, 299 U.S. 109, 118, 57 S.Ct. 96, 100, 81 L.Ed. 70.
108
I would reverse and remand the case for dismissal in the Georgia courts.
1
64 Stat. 1238, 45 U.S.C. § 152, Eleventh, 45 U.S.C.A. § 152, Eleventh. The section provides:
'Eleventh. Notwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly desig-
nated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted—
'(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.
'(b) to make agreements providing for the deduction by such carrier or carriers from the wages of its or their employees in a craft or class and payment to the labor organization representing the craft or class of such employees, of any periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership: Provided, That no such agreement shall be effective with respect to any individual employee until he shall have furnished the employer with a written assignment to the labor organization of such membership dues, initiation fees, and assessments, which shall be revocable in writing after the expiration of one year or upon the termination date of the applicable collective agreement, whichever occurs sooner.
'(c) The requirement of membership in a labor organization in an agreement made pursuant to subparagraph (a) of this paragraph shall be satisfied, as to both a present or future employee in engine, train, yard, or hostling service, that is, an employee engaged in any of the services of capacities covered in the First Division of paragraph (h) of section 153 of this title, defining the jurisdictional scope of the First Division of the National Railroad Adjustment Board, if said employee shall hold or acquire membership in any one of the labor organia tions, national in scope, organized in accordance with
this chapter and admitting to membership employees of a craft or class in any of said services; and no agreement made pursuant to subparagraph (b) of this paragraph shall provide for deductions from his wages for periodic dues, initiation fees, or assessments payable to any labor organization other than that in which he holds membership: Provided, however, That as to an employee in any of said services on a particular carrier at the effective date of any such agreement on a carrier, who is not a member of any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services, such employee, as a condition of continuing his employment, may be required to become a member of the organization representing the craft in which he is employed on the effective date of the first agreement applicable to him: Provided, further, That nothing herein or in any such agreement or agreements shall prevent an employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of said services.
'(d) Any provisions in paragraphs Fourth and Fifth of this section in conflict herewith are to the extent of such conflict amended.'
2
The pertinent findings of the trial court are:
'(5) The funds so exacted from plaintiffs and the class they represent by the labor union defendants have been, and are being, used in substantial amounts by the latter to support the political compaigns of candidates for the offices of President and Vice President of the United States, and for the Senate and House of Representatives of the United States, opposed by plaintiffs and the class they represent, and also to support by direct and indirect financial contributions and expenditures the political campaigns of candidates for State and local public offices, opposed by plaintiffs and the class they represent. The said funds are so used both by each of the labor union defendants separately and by all of the labor union defendants collectively and in concert among themselves and with other organizations not parties to this action through associations, leagues, or committees formed for that purpose.
'(6) Those funds have been and are being used in substantial amounts to propagate political and economic doctrines, concepts and ideologies and to promote legislative programs opposed by plaintiffs and the class they represent. Those funds have also been and are being used in substantial amounts to impose upon plaintiffs and the class they represent, as well as upon the general public, conformity to those doctrines, concepts, ideologies and programs.
'(7) The exaction of moneys from plaintiffs and the class they represent for the purposes and activities described above is not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents or to inform the employees whom said defendants represent of developments of mutual interest.
'(8) The exaction of said money from plaintiffs and the class they represent, in the fashion set forth above by the labor union defendants, is pursuant to the union shop agreements and in accordance with the terms and conditions of those agreements.'
3
The trial judge concluded:
'Said exaction and use of money, said union shop agreements and Section 2 (eleventh) of the Railway Labor Act and their enforcement violate the United States Constitution which in the First, Fifth, Ninth and Tenth Amendments thereto guarantees to individuals protection from such unwarranted invasion of their personal and property rights, (including freedom of association, freedom of thought, freedom of speech, freedom of press, freedom to work and their political freedom and rights) under the cloak of federal authority.'
The judgment and decree provided that the appellants and the carriers 'be and they hereby are perpetually enjoind from enforcing the said union shop agreements * * * and from discharging petitioners, or any member of the class they represent, for refusing to become or remain members of, or pay periodic dues, fees, or assessments to, any of the labor union defendants, provided, however, that said defendants may at any time petition the court to dissolve said injunction upon a showing that they no longer are engaging in the improper and unlawful activities described above.' Judgment was also entered in favor of three of the named appellees for the amounts of dues, initiation fees and assessments paid by them.
4
The Supreme Court of Georgia viewed the constitutional question presented for its decision as follows:
'The fundamental constitutional question is: Does the contract between the employers of the plaintiffs and the union defendants, which compels these plaintiffs, if they continue to work for the employers, to join the unions of their respective crafts, and pay dues, fees, and assessments to the unions, where a part of the same will be used to support political and economic programs and candidates for public office, which the plaintiffs not only do not approve but oppose, violate their rights of freedom of speech and deprive them of their property without due process of law under the First and Fifth Amendments to the Federal Constitution?' 215 Ga. at pages 43—44, 108 S.E.2d at page 807.
5
The record contained one union constitution with a statement of political objectives and various other union constitutions authorizing political education activity, lobbying before legislative bodies, and publication of union views. There was an indication that Labor was furnished to members of some unions. There was also material taken from the hearings on § 2, Eleventh which included statements of management opponents of the Act that union dues were used for political activities and employees should not be forced to join unions if they did not like the purposes for which their funds would be spent. And there were statements by Rep. Hoffman of Michigan during the debate on the bill, warning union leaders not to levy 'political assessments' and use the Act to force their members to meet those assessments.
6
'(T)hese railroad labor organizations in the past have refrained from advocating the union shop agreement, or any other type of union security. It has always been our philosophy that the strongest and most militant type of labor organization was the one whose members were carefully selected and who joined conviction and a desire to assist their fellows in promoting objects of labor unionism * * *.' Statement of Charles J. MacGowan, vice president of the International Brotherhood of Boilermakers, Transcript of Proceedings, Presidential Board, appointed Feb. 20, 1943, p. 5358. See also Transcript of Proceedings, Presidential Emergency Board No. 98, appointed pursuant to Exec. Order No. 10306, Nov. 15, 1951, pp. 835—845, Carriers' Exhibit W—28, U.S.Code Congressional and Administrative Service, 1951, p. 1141. For an analysis of the reasons for the long-time absence of pressure for union security agreements in the railway industry, see Toner, The Closed Shop, pp. 93—114.
7
The principle of freedom of choice had been incorporated in two earlier pieces of legislation governing railroads. The Bankruptcy Act of March 3, 1933, 47 Stat. 1481, § 77(p) and (q), 11 U.S.C.A. § 205 note, provides that no judge, trustee, or receiver of a carrier should interfere withe mployee organization, influence or coerce employees to join a company union, or require employees to join or refrain from joining a labor organization. The Emergency Railroad Transportation Act of June 16, 1933, 48 Stat. 214, § 7(e), required all carriers to abide by these provisions of the Bankruptcy Act. The latter provision was temporary, with a maximum duration of two years. See testimony of Joseph B. Eastman, Federal Coordinator of Transportation, House Hearings on H.R. 7650, 73d Cong., 2d Sess., pp. 22—23, and his official interpretation of this legislation, 7 Interstate Commerce Acts Ann., 1934 Supp., pp. 5972—5973.
8
Eastman further emphasized that only the Trainmen were immediately affected by the broader prohibition he supported. 'I am confident that the only real support for the proposed amendments is from a single organization. None of the other standard organizations has anything to gain from such changes in the bill.' Eastman letter, supra, p. 16. For other expressions of Eastman's views, see House Hearings, supra, pp. 28—29; Hearings on H.R. 9861, House Rules Committee, 73d Cong., 2d Sess., pp. 22—24. That other rail unions were still committed at this time to the principle of voluntarism, despite their support of the Trainmen's position, is indicated by the statement of George H. Harrison, representing the Railway Labor Executives' Association: 'Now, I hope the committee will not get the thought from these statements that the railroad labor unions that I speak for want to force these men into our unions, because that is not our purpose; * * *.' House Hearings on H.R. 7650, supra, p. 86.
9
The Board's view as to the illegality of a union shop was supported by an opinion of the Attorney General, 40 Op.Atty.Gen., No. 59, p. 254 (Dec. 29, 1942).
10
At the time of the congressional deliberations which preceded the enactment of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., the Trainmen, through their president, A. F. Whitney, advocated the closed shop, and urged the repeal of the provisions which prohibited it. Hearings on Amendments to the National Labor Relations Act, House Committee on Education and Labor, 80th Cong., 1st Sess., pp. 1549—1552, 1561. However, the Railway Labor Executives' Association opposed amendment of the 1934 Act. A. E. Lyon, executive secretary of the Association, said: 'We want to make it very clear that we are proposing no amendments to the Railway Labor Act. We believe that none is necessary, and we are opposed to those which Mr. Whitney suggested.' Hearings, p. 3722. Lyon added: 'We are not asking you to amend the Railway Labor Act and provide a closed shop as Mr. Whitney did. We do not think it is necessary.' P. 3724. In response to the query, 'By the services you have performed for your members you have attracted people voluntarily to join. Is that not correct?' Lyon replied: 'I think that is true. And many of our union people believe they would rather have members that belong because they want to, rather than because they have to.' P. 3732.
11
The Act of 1888, 25 Stat. 501, authorized the creation of boards of voluntary arbitration to settle controversies between carriers and their employees which threatened to disrupt transportation. § 1. The Act also provided for a temporary presidential commission to investigate the causes of a controversy and the best means of adjusting it; the commission was to report the results of its investigation to the President and Congress. § 6.
In 1898 Congress repealed the Act of 1888 and passed the Erdman Act, 30 Stat. 424, providing that 'whenever a controversy concerning wages, hours of labor, or conditions of employment shall arise between a carrier subject to this Act and the employees of such carrier, seriously interrupting or threatening to interrupt the business of said carrier,' the Chairman of the Interstate Commerce Commission and the Commissioner of Labor should attempt to resolve the dispute, at the request of either party, by conciliation and mediation. § 2. If these methods failed, a board of voluntary arbitration could be set up with representatives on it of the carrier and the 'labor organization to which the employees directly interested belong * * *.' § 3. Section 10 of the Act also made it criminal for an employer to require an employee to promise not to become or remain a member of a labor organization or to discriminate against an employee for such membership, a provision which was held unconstitutional in Adair v. United States, 208 U.S. 161 28 S.Ct. 277, 52 L.Ed. 436.
The Erdman Act was superseded in 1913 by the passage of the Newlands Act, 38 Stat. 103. It created a Board of Mediation and Conciliation to which either party to a controversy could refer the dispute and which could proffer its services even without request if an interruption of traffic was imminent and seriously jeopardized the public interest. The Board also was authorized to give opinions as to the meaning or application of agreements reached through mediation. § 2. The arbitration procedures set up by the Erdman Act were further elaborated. §§ 3—8.
In 1916 Congress imposed the 8-hour day of the railroads, 39 Stat. 721, 45 U.S.C.A. § 65. During the period of federal operation of the railroads in World War I and afterwards the Federal Government executed agreements with many of the national labor organizations as representatives of the railroad employees. Boards of adjustment were also set up to handle disputes concerning the interpretation and application of agreements. See Hearings on S. 3295, Subcommittee of Senate Committee on Labor and Public Welfare, 81st Cong., 2d Sess., pp. 216, 305. By the Transportation Act of 1920, 41 Stat. 456, Congress terminated federal control and established an extensive new regulatory scheme. See n. 12, infra. See generally Hearings on S. 3463, Subcommittee of the Senate Committee on Labor and Public Welfare, 81st Cong., 2d Sess., pp. 124—131.
12
The Transportation Act of 1920 provided for a Railroad Labor Board, with power to render a decision in disputes between carriers and their employees over wages, grievances, rules, or working conditions not resolved through conference and adjustment procedures. § 307. In rendering a decision on wages or working conditions, the Board had a duty to establish wages and conditions which in its opinion were 'just and reasonable.' § 307(d). It was held, however, that the decisions of the Board could not be enforced by legal process. See Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536; Pennsylvania R. System v. Pennsylvania R. Co., 267 U.S. 203, 45 S.Ct. 307, 69 L.Ed. 574. By 1926 the Board had lost the confidence of both the unions and many of the railroads. Commented the Senate Committee which considered the Railway Labor Act of 1926: 'In view of the fact that the employees absolutely refuse to appear before the labor board and that many of the important railroads are themselves opposed to it, that it has been held by the Supreme Court to have no power to enforce its judgments, that its authority is not recognized or respected by the employees and by a number of important railroads, that the President has suggested that it would be wise to seek a substitute for it, and that the party platforms of both the Republican and Democratic Parties in 1924 clearly indicated dissatisfaction with the provisions of the transportation act relating to labor, the committee concluded that the time had arrived when the labor board should be abolished and the provisions relating to labor in the transportation act, 1920, should be repealed.' S.Rep.No.606, 69th Cong., 1st Sess., pp. 3—4.
13
For reiteration by various union spokesmen of this purpose of eliminating the problems created by the 'free rider,' see Hearings on S. 3295, supra, pp. 6, 32—33, 40, 66, 130, 236 237; Hearings on H.R. 7789, supra, pp. 9, 19, 25—26, 29, 37—38, 49 50, 79, 81, 85, 87, 89, 228, 240—241, 250, 253, 255, 275. For other statements by members of Congress indicating their acceptance of this justification for the legislation, see Senate Hearings, supra, pp. 169—171; House Hearings, supra, pp. 25, 87, 106, 110, 139; 96 Cong.Rec. 16279, 17050—17051, 17055, 17057, 17058.
Mr. Harrison expressly disclaimed that the union shop was sought in order to strengthen the bargaining power of the unions. He said:
'I do not think it would affect the power of bargaining one way or the other * * *. If I get a majority of the employees to vote for my union as the bargaining agent, I have got as much economic power at that stage of development as I will ever have. The man that is going to scab—he will scab whether he is in or out of the union, and it does not make any difference.' House Hearings, supra, pp. 20—21.
Nor was any claim seriously advanced that the union shop was necessary to hold or increase union membership. The prohibition against union security in the 1934 Act had not interfered with the growth of union membership or caused the unions to lose their positions as exclusive bargaining agents. See A.F. of L. v. American Sash & Door Co., 335 U.S. 538, 548—549, 69 S.Ct. 258, 263, 93 L.Ed. 222, note 4 (concurring opinion); see also Transcript of Proceedings, Presidential Emergency Board No. 98, appointed pursuant to Exec. Order No. 10306, Nov. 15, 1951, Carriers' Exhibits W—23, W—28, pp. 38—51.
14
The unions continued to urge the elimination of the problems created by the 'free rider' as the justification for the union shop in the proceedings before the Presidential Emergency Board, which recommended that the carriers make the agreements involved in this case. Mr. Harrison said: '* * * the railroad unions' primary purpose in seeking and obtaining the amendment to the Railway Labor Act in 1951 to permit the checkoff for payment of dues, was to eliminate the 'free rider,' the guy who drags his feet, a term which is applied by unions to non-members who obtain, without cost to themselves, the benefits of collective bargaining procured through the efforts of the dues-paying members.' Transcript of Proceedings, Presidential Emergency Board No. 98, appointed pursuant to Exec. Order No. 10306, Nov. 15, 1951, p. 150. See also Transcript, pp. 40—44, 144—156, 182—183, 186—188, 202—203, 268, 283—286, 289, 545, 608—611, 1893, 1901, 2136, 2495 2497, 2795, 2839, 2930, 3014—3015, 3018—3019.
15
Section 2, Eleventh (c), which gives scope for intercraft mobility in the rail industry, is consistent with the view that the primary union and congressional concern was with the elimination of the 'free rider' who did not support his representative's performance of its functions under the Act. The section provides that an operating employee cannot be required to become a member of his craft or class representative if 'said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services * * *.' This Court held in Pennsylvania R. Co. v. Rychlik, 352 U.S. 480, 77 S.Ct. 421, 422, 1 L.Ed.2d 480, that the unions 'national in scope' contemplated by this provision are those which have already qualified as electors under § 3 of the Act to participate in the National Railroad Adjustment Board. As the court said in Pigott v. Detroit, T. & I.R. Co., D.C., 116 F.Supp. 949, 955, note 11, affirmed 6 Cir., 221 F.2d 736: 'Each union participating in the agencies of the Act must itself pay for the salaries and expene § of its officials who serve in such agencies. This constitutes a considerable financial burden which must be reflected in the dues charged the employees. Unless a labor organization were obliged to participate in the judgment board machinery before it could qualify for the union shop exception, it would place the bargaining representative in an unfair competitive position with respect to a rival union. Employees would be tempted to desert the organization of a bargaining representative which was assuming its responsibilities under the Act in favor of another union which was not contributing to its operation and which could thereby offer cheaper dues. This would defeat the very purpose of the union amendment which is to compel each employee to contribute his part to the bargaining representative's activities on his behalf, including its participation in the administrative machinery of the Act.'
16
See Senate Hearings, pp. 173—174, 316—317; House Hearings, pp. 160, 172—173. See also 96 Cong.Rec. 17049—17050.
17
A distinction between the use of union funds for political purposes and their expenditure for nonpolitical purposes is implicit in other congressional enactments. Thus the Treasury has adopted this regulation under § 162 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 162, to govern the deductibility for income-tax purposes of payments by union members to their union:
'Dues and other payments to an organization, such as a labor union or a trade association, which otherwise meet the requirements of the regulations under section 162, are deductible in full unless a substantial part of the organization's activities consists of (expenditures for lobbying purposes, for the promotion or defeat of legislation, for political campaign purposes (including the support of or opposition to any candidate for public office), or for carrying on propaganda (including advertising) related to any of the foregoing purposes) * * *. If a substantial part of the activities of the organization consists of one or more of those specified, deduction will be allowed only for such portion of such dues and other payments as the taxpayer can clearly establish is attributable to activities other than those so specified. The determination as to whether such specified activities constitute a substantial part of an organization's activities shall be based on all the facts and circumstances. In no event shall special assessments or similar payments (including an increase in dues) made to any organization for any of such specified purposes be deductible.' 26 CFR § 1.162—15(c)(2); see also Rev.Proc. 61—10, 1961—16 Int.Rev.Bull. 49, April 17, 1961. Cf. Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462.
18
For example, many of the national labor unions maintain death benefit funds from the dues of individual members transmitted by the locals.
19
In 1958 Senator Potter proposed an amendment to pending labor legislation that would have given employees subject to a union-shop agreement the right to have their dues used only for collective bargaining and related purposes and would have required the Secretary of Labor, if he determined that the dues were not so expended, to bring an action in behalf f the dissenter for the recovery of all the money paid by the dissenter to the union during the life of the agreement and for such other appropriate and injunctive relief as the court deemed just and proper. See 104 Cong.Rec. 11330. Senator Potter advanced this proposal to implement principles which he believed to be already implicit in the labor laws. He said, 'I know that when Congress enacted legislation providing for labor and management to enter into contracts for union shops it was intended, under the union shop principle, that labor would use the dues for collective-bargaining purposes.' 104 Cong.Rec. 11215; see also id., p. 11331. The failure of the amendment to be adopted reflected disagreement in the Senate over the scope of its coverage and doubts as to the propriety of the breadth of the remedy. See 104 Cong.Rec. 11214 11224, 11330—11347.
20
Compare Senator Kennedy's objection to the remedy for recovery of all dues contemplated by the Potter emandment. 104 Cong.Rec. 11346.
21
No contention was made below or here that any of the expenditures involved in this case were made in violation of the Federal Corrupt Practices Act, 18 U.S.C. § 610, 18 U.S.C.A. § 610, or any state corrupt practices legislation.
22
We note that the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq., requires every labor organization subject to the federal labor laws to file annually with the Secretary of Labor a financial report as to certain specified disbursements and also 'other disbursements made by it including the purposes thereof * * *.' § 201(b)(6). Each union is also required to maintain records in sufficient detail to supply the necessary basic information and data from which the report may be verified. § 206. The information required to be contained in such report must be available to all union members. § 201(c).
1
The problem of employees who receive benefits of union representation but who are unwilling to give financial support to the union has received much attention from Congress (see S.Rep. No. 105, 80th Cong., 1st Sess., pp. 5—7; H.R.Rep. No. 510, 80th Cong., 1st Sess., pp. 42—43) and from the courts. See Radio Officers' Union, etc. v. National Labor Relations Board, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455.
2
Commission on Human Rights, Summary Record of the Fourteenth Meeting, February 4, 1947, U.N.Doc. E/CN.4/SR.14, p. 4.
3
We noted in the Hanson case, 351 U.S. 236—237, 76 S.Ct. 714, 720—721, note 8, various restrictions placed by union constitutions and by-laws on individual members. Some disqualified persons from membership for their political views or associations. Certainly government could not prescribe standards of that character.
Some restrained members from certain kinds of speech or activity. Certainly government could not impose these restraints.
Some required the use of portions of union funds for purposes other than collective bargaining. Plainly those conditions could not be imposed by the state or federal government or enforced by the judicial branch of government. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586.
4
Hostility to such compulsion was expressed early in our history. Madison, in his Memorial and Remonstrance Against Religious Assessments, wrote, 'Who does not see * * * that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?' II Writings of James Madison (Hunt ed. 1901), p. 186.
Jefferson in his 1779 Bill for Religious Liberty wrote 'that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.' See 12 Hening's Va.Stat. 85; Brant, Madison, The Nationalist (1948), p. 354.
1
Although there were more complainants when the suit was brought, there were only six when the trial was completed.
2
64 Stat. 1238, 45 U.S.C. § 152, Eleventh, 45 U.S.C.A. § 152, Eleventh.
3
In accordance with the requirements of the statute, the agreement provided, in language almost identical to that of the statute, that no employee would be required to become or remain a member of the union 'if such membership is not available to such employe upon the same terms and conditions as are generally applicable to any other member, or if the membership of such employe is denied or terminated for any reason other than the failure of the employe to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.'
4
Looper v. Georgia Southern & F.R. Co., 213 Ga. 279, 284, 99 S.E.2d 101, 104—105.
5
The trial court also held that the section as enforced violated the Fifth Ninth and Tenth Amendments. My view as to the First Amendment makes it unnecessary for me to consider the claims under the other Amendments.
6
215 Ga. 27, 46, 108 S.E.2d 796, 808.
7
Clay v. Sun Insurance Office, 363 U.S. 207, 213, 80 S.Ct. 1222, 1226, 4 L.Ed.2d 1170 (dissenting opinion).
8
The specific problem of use of the compelled dues for political purposes was raised during both the hearings and the floor debates. Hearings on S. 3295, Subcommittee of the Senate Committee on Labor and Public Welfare, 81st Cong., 2d Sess., pp. 316—317; Hearings on H.R. 7789, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., p. 160; 96 Cong.Rec. 17049 17050.
Again, in 1958, when Senator Potter introduced his amendment to limit the use of compelled dues to collective bargaining and related purposes, he pointed out on the floor of the Senate that 'the fact is that under current practices in some of our labor organizations, dissenters are being denied the freedom not to support financially political or ideological or other activities which they may oppose.' 104 Cong.Rec. 11214. It could hardly be contended that the debate on his proposal, which was defeated, indicated any generally held belief that such use of compelled dues was already proscribed under § 2, Eleventh or any other existing statute. See 104 Cong.Rec. 11214—11224, 11330—11347.
9
351 U.S. at pages 235, 236, 238, 76 S.Ct. at page 720. See also id., 351 U.S. at page 242, 76 S.Ct. at page 723 (concurring opinion).
10
See DeMille v. American Federation of Radio Artists, Cal.App., 175 P.2d 851, 854, affirmed 31 Cal.2d 139, 147—149, 187 P.2d 769, 775—776, certiorari denied 333 U.S. 876, 68 S.Ct. 906, 92 L.Ed. 1152.
11
United States v. C.I.O., 335 U.S. 106, 144, 68 S.Ct. 1349, 1368 (concurring opinion).
12
See, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.
13
We held in the Hanson case, with respect to this very same § 2, Eleventh, that even though the statutory provision authorizing union shops is only permissive, that provision, 'which expressly declares that state law is superseded,' is 'the source of the power and authority by which any private rights are lost or sacrificed' and therefore is 'the governmental action on which the Constitution operates.' 351 U.S. at page 232, 76 S.Ct. at page 718. Even though § 2, Eleventh is permissive in form, Congress was fully aware when enacting it that the almost certain result would be the establishment of union shops throughout the railroad industry. Witness after witness so testified during the hearings on the bill, and this testimony was never seriously disputed. See Hearings on S. 3295, supra, note 8, passim; Hearings on H.R. 7789, supra, note 8, passim.
14
1 Stokes, Church and State in the United States, 391 (1950).
15
Brant, James Madison: The Nationalist, 354 (1948).
16
Cf. Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711.
17
The trial court went on to include in the class other employees who opposed the use of union funds for any purposes 'other than the negotiation, maintenance and administration of agreements coc erning rates of pay, rules and working conditions, or wages, hours, terms or other conditions of employment or the handling of disputes relating to the above.' I read the two opinions of the Georgia Supreme Court, however, as limiting its holding to the precise question of whether the First Amendment is violated by the compulsory legal requirement that employees pay dues and other fees which are partly used to propagate political and ideological views obnoxious to the employees. I consequently do not reach or consider the different question lurking in this part of the trial court's definition of class.
18
See, e.g., Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 367, 41 S.Ct. 338, 342, 65 L.Ed. 673.
19
Cf. Hansberry v. Lee, 311 U.S. at pages 41—42, 61 S.Ct. at pages 117—118.
1
'A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.'
2
Taft, The A.F. of L. in the Time of Gompers, p. 71 (1957).
3
Perlman and Taft, History of Labor in the United States, 1896—1932, pp. 380—385.
4
S.Rep. No. 2262, 81st Cong., 2d Sess. 2—3.
5
Remarks of Mr. Harrison, Hearings, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., p. 253.
6
96 Cong.Rec. 17049—17050; Hearings, Subcommittee of the Senate Committee on Labor and Public Welfare on S. 3295, 81st Cong., 2d Sess., pp. 173—174.
7
Remarks of Mr. Smith, Hearings, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., pp. 115 116.
8
Compare Railway Employes' Dept. v. Hanson, 351 U.S. 225, 236—237, 76 S.Ct. 714, 720—721, note 8.
9
The pertinent portion of the section follows:
'Notwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted—
'(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender h e periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.' 64 Stat. 1238, 45 U.S.C. § 152, Eleventh, 45 U.S.C.A. § 152, Eleventh.
10
See the provisions of the constitutions of the Brotherhood of Maintenance of Way Employees, the Brotherhood of Railway Carmen of America, and the International Association of Machinists before the Court in the Hanson record, pp. 103—143.
11
Appellees' brief, pp. 16—17, 65.
12
'B. The Grand Lodge Constitution of the Brotherhood Railway Carmen of America prohibits members from 'interfering with legislative matters affecting national, state, territorial, dominion or provincial legislation, adversely affecting the interests of our members.' § 64.' 351 U.S. at page 237, 76 S.Ct. at page 721, n. 8.
13
To ignore this distinction would be to go far beyond the severely criticized, indeed rather discredited, case of United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, which found coercive implications in the processing tax of the Agricultural Adjustment Act, 7 U.S.C.A. § 601 et seq. The dissenting views of Mr. Justice Stone, concurred in by Brandeis and Cardozo, JJ., may surely be said to have won the day: 'Although the farmer is placed under no legal compulsion to reduce acreage, it is said that the mere offer of compensation for so doing is a species of economic coercion which operates with the same legal force and effect as though the curtailment were made mandatory by act of Congress.' 297 U.S. at page 81, 56 S.Ct. at page 326.
For an analysis of the 1951 Amendment leading to a narrow scope of its constitutional implications, see Wellington, The Constitution, the Labor Union, and 'Governmental Action,' 70 Yale L.J. 345, 352—360, 363—371.
14
The following States have integrated bars: Alabama (Ala.Code, Tit. 46, § 30); Alaska (Alaska Laws Ann. §§ 35—2—77a to 35—2—77o); Arizona (Ariz.Code Ann. § 32—302, A.R.S. § 32—201); California (Cal.Bus. & Prof.Code § 6002); Florida (Fla.Stat.Ann., Vol. 31, pp. 699—713 (court rule)); Idaho (Idaho Code & 3—408 to § 3—417); Kentucky (Ky.Rev.Stat. § 30.170); Louisiana (LSA—Rev.Stat. 37:211; Art. IV, Articles of Incorporation, La.State Bar Assn., 4 Dart, Annotations to La.Stat.1950, p. 29); Michigan (Mich.Stat.Ann. § 27—101, Comp. Laws 1948, § 691.51); Mississippi (Miss. Code, § 8696); Missouri (Mo.Supreme Court Rule 6, V.A.M.R., 352 Mo. xxix); Nebraska (Neb.Supreme Court Rule IV, In re Integration of Nebraska State Bar Assn., 133 Neb. 283, 275 N.W. 265); Nevada (Nev.Rev.Stat. 7.270—7.600); New Mexico (N.Mex.Stat.Ann. § 18—1—2 to § 18—1—24); North Carolina (N.C.Gen.Stat. § 84—16); North Dakota (N.D.Rev.Code § 27—1202); Oklahoma (In re Integration of the Bar of Oklahoma, 185 Okl. 505, 95 P.2d 113, amended by Okla. Supreme Court rules approved October 6, 1958, Okl.Stat.Ann., 1960 Cum.Ann. Pocket Part, Tit. 5, c. 1, App. 1; Oregon (Ore.Rev.Stat. §§ 9.010—9.210); South Dakota (S.D.Code § 32.1114); Texas (Vernon's Ann.Civ.Stat., Art. 320a—1, § 3); Utah (Utah Code Ann. § 78—51—1 to § 78—51—25); Virginia (Va.Code § 54—49); Washington (Wash.Rev.Code § 2.48.020); West Virginia (W.Va.Code Ann. 51—1—4a); Wisconsin (Wis.Stat. § 256.31, 5 Wis.2d 618, 627, 93 N.W.2d 601, 605); Wyoming (Wyo.Stat. § 5—22; Wyo.Supreme Court Rules for State Bar, Rule 5).
15
So far as reported, all decisions have upheld the integrated bar against constitutional attack. Carpenter v. State Bar of California, 211 Cal. 358, 295 P. 23; Herron v. State Bar of California, 24 Cal.2d 53, 147 P.2d 543; Petition of Florida State Bar Ass'n, Fla., 40 So.2d 902; In re Mundy, 202 La. 41, 11 So.2d 398; Ayres v. Hadaway, 303 Mich. 589, 6 N.W.2d 905; In re Scott, 53 Nev. 24, 292 P. 291; In re Platz, 60 Nev. 296, 108 P.2d 858; In re Gibson, 35 N.Mex. 550, 4 P.2d6 43; Kelley v. State Bar of Oklahoma, 148 Okl. 282, 298 P. 623; Lathrop v. Donohue, 10 Wis.2d 230, 102 N.W.2d 404, affirmed 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191.
16
The Maloney Act of 1938 added § 15A to the Securities Exchange Act of 1934. 52 Stat. 1070, 15 U.S.C. § 78o—3, 15 U.S.C.A. § 78o—3. In order to be registered, a number of statutory standards must be met. The statute specifically requires that an association's rules provide for democratic representation of the membership and that dues be equitably allocated. See § 15A(b)(5) and (6). Only one association, the National Association of Securities Dealers, Inc., has ever applied for or been granted registration. NASD membership comprises roughly three-quarters of all brokers and dealers registered with the Securities and Exchange Commission. Loss, Securities Regulation 766—67 (1951, Supp.1955). Sections 15A(i) and (n) of the Act authorize the NASD to formulate rules which stipulate that members shall refuse to deal with non-members with immunity from the antitrust laws. See S.Rep. No. 1455, 75th Cong., 3d Sess. 8—9 (1938); Loss, op. cit., supra, 769—770. The Commission has stated that it is 'virtually impossible for a dealer who is not a member of the NASD to participate in a distribution of important size.' National Association of Securities Dealers, Inc., 19 S.E.C. 424, 441.
17
In 1949 Senator Frear introduced a bill which would have greatly expanded the applicability of the registration, proxy, and insider trading provisions of the Securities Exchange Act to small corporations. S. ,2408, 81st Cong., 1st Sess. The NASD supported the passage of the proposed legislation, and testified on its behalf before the Senate subcommittee. Hearings Before Subcommittee of Senate Committee on Banking and Currency on S. 2408, 81st Cong., 2d Sess. 53—62 (1950); Loss, op. cit., supra, 620, 621.
18
To this extent Thornhill v. State of Alabama, 310 U.S. 88, 101—106, 60 S.Ct. 736, 743—746, 84 L.Ed. 1093, has survived and was applied in Chauffeurs, Teamsters, etc. Union v. Newell, 356 U.S. 341, 78 S.Ct. 779, 2 L.Ed.2d 809.
19
See Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 829—851.
20
1 Commons, History of Labor in the United States, 318—325 (1918).
21
Taft, The A. F. of L. in the Time of Gompers, 289—292 (1957); Bakke and Kerr, Unions, Management and the Public, 215 (1948).
22
3 Cole, A Short History of the British Working Class Movement, 56 (2d ed. 1937).
23
Logan, Trade Unions in Canada, 59—60 (1948).
24
William v. Hursey, 33 A.L.J.R. 269 (1959).
25
These are the totals of the figures for 1957, 1958, and 1959 reported in Proceedings of the AFL-CIO Constitutional Convention, Vol. II, pp. 17—19 (1959) and id., pp. 17—19 (1957).
26
39 Stat. 721, 45 U.S.C. §§ 65—66, 45 U.S.C.A. §§ 65—66.
27
Letters from Clerk of House of Representatives to Supreme Court Librarian, May 5, 1960; May 10, 1961.
28
For a recent example, see the statement of Stanley H. Ruttenberg, Director of Research for the AFL—CIO, on pending tax legislation before the House Ways and Means Committee, reported in part in the New York Times, May 12, 1961, p. 14, col. 3.
29
A contested question in the corporate field is the legitimacy of corporate charitable contributions. This presents a not dissimilar problem whether the Governmen may authorize an organization to expend money for a purpose outside the corporate business to which an individual stockholder is opposed. A shareholder who joined prior to the authorization and who therefore cannot be said to have impliedly consented surely is as directly affected as is the member of a union shop. See A. P. Smith Mfg. Co. v. Barlow, 13 N.J. 145, 98 A.2d 581, 39 A.L.R.2d 1179, which upheld against federal constitutional attack a state statute which authorized New Jersey corporations to make contributions to charity. The amounts involved were substantial.
30
See Proceedings of the AFL—CIO Constitutional Convention, Vol. II, pp. 183—192 (1959).
A recent leader of the London Times which reviewed the annual report of the British Trade Unions Council noted that the document concerned itself with 'few * * * political subjects * * * which have not their industrial sides.' The London Times, Aug. 23, 1960, p. 9, col. 2.
31
The course of legislation in Great Britain illustrates the various methods open to Congress for exempting union members from political levies. As a consequence of a restrictive interpretation of the Trade Union Act of 1876, 39 & 40 Vict., c. 22, by the House of Lords in Amalgamated Society of Ry. Servants v. Osborne, (1910) A.C. 87, Parliament in 1913 passed legislation which allowed a union member to exempt himself from political contributions by giving specific notice. Trade Union Act of 1913, 2 & 3 Geo. V, c. 30. The fear instilled by the general strike in 1926 caused the Conservative Parliament to amend the 'contracting out' procedure by a 'contracting in' scheme, the net effect of which was to require that each individual give notie of his consent to contribute before his dues could be used for political purposes. Trade Disputes and Trade Unions Act of 1927, 17 & 18 Geo. V, c. 22. When the Labor Party came to power, Parliament returned to the 1913 method. Trade Disputes and Trade Unions Act of 1946, 9 & 10 Geo. VI, c. 52. The Conservative Party, when it came back, retained the legislation of its opponents.
32
Statistics of State School Systems, 1955—1956: Organization, Staff, Pupils, and Finances, c. 2, p. 70 (U.S. Department of Health, Education, and Welfare, 1959).
| 67
|
367 U.S. 488
81 S.Ct. 1680
6 L.Ed.2d 982
Roy R. TORCASO, Appellant,v.Clayton K. WATKINS, Clerk of the Circuit Court for Montgomery County, Maryland.
No. 373.
Argued April 24, 1961.
Decided June 19, 1961.
Messrs. Leo Pfeffer, New York City, and Lawrence Speiser, Washington, D.C. (Messrs. Joseph A. Sickles, Carlton R. Sickles, Washington, D.C., Bruce N. Goldberg, Bethesda, Md., Rowland Watts, Baltimore, Md., and George Kaufmann, Washington, D.C., on the brief), for appellant.
Messrs. Thomas B. Finan, Cumberland, Md., and Joseph S. Kaufman, Baltimore, Md. (Messrs. C. Ferdinand Sybert, Ellicott City, Md., Stedman Prescott, Jr., Silver Springs, Md., on the brief), for appellee.
Messrs. Herbert A. Wolff and Leo Rosen, New York City, for American Ethical Union.
Herbert B. Ehrmann, Boston, Mass., Laurence Peirez, Woodside, N.Y., Isaac G. McNatt, Abraham Blumberg, Arnold Forster, Paul Hartman, Theodore Leskes, Edwin J. Lukas and Sol Robkin, New York City, for the American Jewish Committee ad others, amici curiae.
Mr. Justice BLACK delivered the opinion of the Court.
1
Article 37 of the Declaration of Rights of the Maryland Constitution provides:
2
'(N)o religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God * * *.'
3
The appellant Torcaso was appointed to the office of Notary Public by the Governor of Maryland but was refused a commission to serve because he would not declare his belief in God. He then brought this action in a Maryland Circuit Court to compel issuance of his commission, charging that the State's requirement that he declare this belief violated 'the First and Fourteenth Amendments to the Constitution of the United States * * *.'1 The Circuit Court rejected these federal constitutional contentions, and the highest court of the State, the Court of Appeals, affirmed,2 holding that the state constitutional provision is self-executing and requires declaration of belief in God as a qualification for office without need for implementing legislation. The case is therefore properly here on appeal under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).
4
There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us—it sets up a religious test which was designed to and, if valid, does bar every person who refuses to declare a belief in God from holding a public 'office of profit or trust' in Maryland. The power and authority of the State of Maryland thus is put on the side of one particular sort of believers—those who are willing to say they believe in 'the existence of God.' It is true that there is much historical precedent for such laws. Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way. It soon developed, however, that many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith. This brought on a host of laws in the New Colonies imposing burdens and disabilities of various kinds upon varied beliefs depending largely upon what group happened to be politically strong enough to legislate in favor of its own beliefs. The effect of all this was the formal or practical 'establishment' of particular religious faiths in most of the Colonies, with consequent burdens imposed on the free exercise of the faiths of nonfavored believers.3
5
There were, however, wise and farseeing men in the Colonies too many to mention—who spoke out against test oaths and all the philosophy of intolerance behind them. One of these, it so happens, was George Calvert (the first Lord Baltimore), who took a most important part in the original establishment of the Colony of Maryland. He was a Catholic and had, for this reason, felt compelled by his conscience to refuse to take the Oath of Supremacy in England at the cost of resigning from high governmental office. He again refused to take that oath when it was demanded by the Council of the Colony of Virginia, and as a result he was denied settlementi n that Colony.4 A recent historian of the early period of Maryland's life has said that it was Calvert's hope and purpose to establish in Maryland a colonial government free from the religious persecutions he had known—one 'securely beyond the reach of oaths * * *.'5
6
When our Constitution was adopted, the desire to put the people 'securely beyond the reach' of religious test oaths brought about the inclusion in Article VI of that document of a provision that 'no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' Article VI supports the accuracy of our observation in Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 829, 90 L.Ed. 1084, that '(t)he test oath is abhorrent to our tradition.' Not satisfied, however, with Article VI and other guarantees in the original Constituion, the First Congress proposed and the States very shortly thereafter adopted our Bill of Rights, including the First Amendment.6 That Amendment broke new constitutional ground in the protection it sought to afford to freedom of religion, speech, press, petition and assembly. Since prior cases in this Court have thoroughly explored and documented the history behind the First Amendment, the reasons for it, and the scope of the religious freedom it protects, we need not cover that ground again.7 What was said in our prior cases we think controls our decision here.
7
In Cantwell v. State of Connecticut, 310 U.S. 296, 303—304, 60 S.Ct. 900, 903, 84 L.Ed. 1213, we said:
8
'The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states a incompetent as Congress to enact such laws * * *. Thus the Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.'
9
Later we decided Everson v. Board of Education, 330 U.S. 1, at pages 15 and 16, 67 S.Ct. 504, at page 511, and said this:
10
'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."
11
While there were strong dissents in the Everson case, they did not challenge the Court's interpretation of the First Amendment's coverage as being too broad, but thought the Court was applying that interpretation too narrowly to the facts of that case. Not long afterward, in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648, we were urged to repudiate as dicta the above-quoted Everson interpretation of the scope of the First Amendment's coverage. We declined to do this, but instead strongly reaffirmed what had been said in Everson, calling attention to the fact that both the majority and the minority in Everson had agreed on the principles declared in this part of the Everson opinion. And a concurring opinion in McCollum, written by Mr. Justice Frankfurter and joined by the other Everson dissenters, said this:
12
'We are all agreed that the First and Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church.' * * * We renew our conviction that 'we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion."8
13
The Maryland Court of Appeals thought, and it is argued here, that this Court's later holding and opinion in Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, had in part repudiated the statement in the Everson opinion quoted above and previously reaffirmed in McCollum. But the Court's opinion in Zorach specifically stated: 'We follow the McCollum case.' 343 U.S. at page 315, 72 S.Ct. at page 684. Nothing decided or written in Zorach lends support to the idea that the Court there intended to open up the way for government, state or federal, to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept.9
14
We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers,10 and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.11
15
In upholding the State's religious test for public office the highest court of Maryland said (223 Md. 49, 162 A.2d 442):
16
'The petitioner is not compelled to believe or disbelieve, under threat of punishment or other compulsion. True, unless he makes the declaration of belief he cannot hold public office in Maryland, but he is not compelled to hold office.'
17
The fact, however, that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution. This was settled by our holding in Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 219, 97 L.Ed. 216. We there pointed out that whether or not 'an abstract right to public employment exists,' Congress could not pass a law providing "* * * that no federal employee shall attend Mass or take any active part in missionary work."12
18
This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him.
19
The judgment of the Court of Appeals of Maryland is accordingly reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
20
Reversed and remanded.
21
Mr. Justice FRANKFURTER and Mr. Justice HARLAN concur in the result.
1
Appellant also claimed that the State's test oath requirement violates the provision of Art. VI of the Federal Constitution that 'no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' Because we are reversing the judgment on other grounds, we find it unnecessary to consider appellant's contention that this provision applies to state as well as federal offices.
2
223 Md. 49, 162 A.2d 438. Appellant's alternative contention that this test violates the Maryland Constitution also was rejected by the state courts.
3
See, e.g., I Stokes, Church and State in the United States, 358—446. See also cases cited, note 7, infra.
4
The letter from the Virginia Council to the King's Privy Council is quoted in Hanley, Their Rights and Liberties (Newman Press 1959), 65, as follows:
'According to the instructions from your Lordship and the usual course held in this place, we tendered the oaths of supremacy and allegiance to his Lordship (;) (Baltimore) and some of his followers, who making profession of the Romish Religion, utterly refused to take the same. * * * His Lordship then offered to take this oath, a copy whereof is included * * * but we could not imagine that so much latitude was left for us to decline from the prescribed form, so strictly exacted and so well justified and defended by the pen of our late sovereign, Lord King James of happy memory. * * * Among the many blessings and favors for which we are bound to bless God * * * there is none whereby it hath been made more happy than in the freedom of our Religion * * * and that no papists have been suffered to settle their abode amongst us. * * *'
Of course this was long before Madison's great Memorial and Remonstrance and the enactment of the famous Virginia Bill for Religious Liberty, discussed in our opinion in Everson v. Board of Education, 330 U.S. 1, 11—13, 67 S.Ct. 504, 509—510, 91 L.Ed. 711.
5
Hanley, op. cit., supra, p. 65.
6
'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'
7
See, e.g., the opinions of the Court and also the concurring and dissenting opinions in 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; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Fowler v. State of Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828; Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648; McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 1153, 1218, 6 L.Ed.2d 393.
8
333 U.S. at pages 213, 232, 68 S.Ct. at page 466. Later, in Zorach v. Clauson, 343 U.S. 306, 322, 72 S.Ct. 679, 688, Mr. Justice Frankfurter stated in dissent that '(t)he result in the McCollum case * * * was based on principles that received unanimous acceptance by this Court, barring only a single vote.'
9
In one of his famous letters of 'a Landholder,' published in December 1787, Oliver Ellsworth, a member of the Federal Constitutional Convention and later Chief Justice of this Court, included among his strong arguments against religious test oaths the fol owing statement:
'In short, test-laws are utterly ineffectual: they are no security at all; because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. * * *' Quoted in Ford, Essays on the Constitution of the United States, 170. See also 4 Elliott, Debates in the Several State Conventions on the Adoption of the Federal Constitution, 193.
10
In discussing Article VI in the debate of the North Carolina Convention on the adoption of the Federal Constitution, James Iredell, later a Justice of this Court, said:
'* * * (I)t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?'
And another delegate pointed out that Article VI 'leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and no kind of oppression can take place.' 4 Elliot, op. cit., supra, at 194, 200.
11
Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325 327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120—138, 254—313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47.
12
344 U.S. at pages 191—192, 73 S.Ct. at page 219, quoting from United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 570, 91 L.Ed. 754.
| 23
|
367 U.S. 886
81 S.Ct. 1743
6 L.Ed.2d 1230
CAFETERIA AND RESTAURANT WORKERS UNION, LOCAL 473, AFL-CIO, et al., Petitioners,v.Neil H. McELROY et al.
No. 97.
Argued Jan. 12, 1961.
Decided June 19, 1961.
Rehearing Denied Oct. 9, 1961.
See 82 S.Ct. 21, 22.
Mr. Bernard Dunau, Washington, D.C., for petitioners.
Mr. John F. Davis, Washington, D.C., for respondents.
Mr. Justice STEWART delivered the opinion of th Court.
1
In 1956 the petitioner Rachel Brawner was a short-order cook at a cafeteria operated by her employer, M & M Restaurants, Inc., on the premises of the Naval Gun Factory1 in the city of Washington. She had worked there for more than six years, and from her employer's point of view her record was entirely satisfactory.
2
The Gun Factory was engaged in designing, producing, and inspecting naval ordnance, including the development of weapons systems of a highly classified nature. Located on property owned by the United States, the installation was under the command of Rear Admiral D. M. Tyree, Superintendent. Access to it was restricted, and guards were posted at all points of entry. Identification badges were issued to persons authorized to enter the premises by the Security Officer, a naval officer subordinate to the Superintendent. In 1956 the Security Officer was Lieutenant Commander H. C. Williams. Rachel Brawner had been issued such a badge.
3
The cafeteria where she worked was operated by M & M under a contract with the Board of Governors of the Gun Factory. Section 5(b) of the contract provided:
4
'* * * In no event shall the Concessionaire engage, or continue to engage, for operations under this Agreement, personnel who
5
'(iii) fail to meet the security requirements or other requirements under applicable regulations of the Activity, as determined by the Security Officer of the Activity.'
6
On November 15, 1956, Mrs. Brawner was required to turn in her identification badge because of Lieutenant Commander Williams' determination that she had failed to meet the security requirements of the installation. The Security Officer's determination was subsequently approved by Admiral Tyree, who cited § 5(b)(iii) of the contract as the basis for his action. At the request of the petitioner Union, which represented the employees at the cafeteria, M & M sought to arrange a meeting with officials of the Gun Factory 'for the purpose of a hearing regarding the denial of admittance to the Naval Gun Factory of Rachel Brawner.' This request was denied by Admiral Tyree on the ground that such a meeting would 'serve no useful purpose.'
7
Since the day her identification badge was withdrawn Mrs. Brawner has not been permitted to enter the Gun Factory. M & M offered to employ her in another restaurant which the company operated in the suburban Washington area, but she refused on the ground that the location was inconvenient.
8
The petitioners brought this action in the District Court against the Secretary of Defense, Admiral Tyree, and Lieutenant Commander Williams, in their individual and official capacities, seeking, among other things, to compel the return to Mrs. Brawner of her identification badge, so that she might be permitted to enter the Gun Factory and resume her former employment. The defendants filed a motion for summary judgment, supported by various affidavits and exhibits. The motion was granted and the complaint dismissed by the District Court. This judgment was affirmed by the Court of Appeals for the District of Columbia, sitting en banc. Four judges dissented.2 We granted certiorari because of an alleged conflict between the Court of Appeals' decision and Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377. 364 U.S. 813, 81 S.Ct. 43, 5 L.Ed.2d 44.
9
As the case comes here, two basic questions are presented. Was the commanding officer of the Gun Factory authorized to deny Rachel Brawner access to the installation in the way he did? If he was so authorized, did his action in excluding her operate to deprive her of any right secured to her by the Constitution?
I.
10
In Greene v. McElroy, supra, the Court was unwilling to find, in the absence of explicit authorization, that an aeronautical engineer, employed by a private contractor on private property, could be barred from following his profession by governmental revocation of his security clearance without according him the right to confront and cross-examine hostile witnesses. The Court in that case found that neither the Congress nor the President had explicitly authorized the procedure which had been followed in denying Greene access to classified information. Accordingly we did not reach the constitutional issues which that case otherwise would have presented. We proceed on the premise that the explicit authorization found wanting in Greene must be shown in the present case, putting to one side the Government's argument that the differing circumstances here justify less rigorous standards for measuring delegation of authority.
11
It cannot be doubted that both the legislative and executive branches are wholly legitimate potential sources of such explicit authority. The control of access to a military base is clearly within the constitutional powers granted to both Congress and the President. Article I, § 8, of the Constitution gives Congress the power to 'provide the maintain a navy;' to 'make rules for the government and regulation of the land and naval forces;' to 'exercise exclusive legislation * * * over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings;' and to 'make all laws which shall be necessary and proper for carrying into execution the foregoing powers * * *.' Broad power in this same area is also vested in the President by Article II, § 2, which makes him the Commander in Chief of the Armed Forces.
12
Congress has provided that the Secretary of the Navy 'shall administer the Department of the Navy' and shall have 'custody and charge of all * * * property of the Department.' 10 U.S.C. § 5031(a) and (c), 10 U.S.C.A. § 5031(a, c). In administering his Department, the Secretary has been given statutory power to 'prescribe regulations, not inconsistent with law, for the government of his department, * * * and the custody, use, and preservation of the * * * property appertaining to it.' 5 U.S.C. § 22, 5 U.S.C.A. § 22. The law explicitly requires that United States Navy Regulations shall be approved by the President, 10 U.S.C. § 6011, 10 U.S.C.A. § 6011, and the pertinent regulations in effect when Rachel Brawner's identification badge was revoked had, in fact, been expressly approved by President Truman on August 9, 1948.
13
The requirement of presidential approval of Navy regulations is of ancient vintage.3 The significance of such presidential approval has often been recognized by this Court. Smith v. Whitney, 116 U.S. 167, 181, 6 S.Ct. 570, 577, 29 L.Ed. 601; Johnson v. Sayre, 158 U.S. 109, 117, 15 S.Ct. 773, 776, 39 L.Ed. 914; United States Grain Corp. v. Phillips, 261 U.S. 106, 109, 43 S.Ct. 283, 284, 67 L.Ed. 552; Denby v. Berry, 263 U.S. 29, 37, 44 S.Ct. 74, 77, 68 L.Ed. 148.4 We may take it as settled that Navy Regulations approved by the President are, in the words of Chief Justice Marshall, endowed with 'the sanction of the law.' United States v. Maurice, 2 Brock. 96, 105, Fed.Cas. No. 15,747.5 And we find no room for substantial doubt that the Navy Regulations in effect on November 15, 1956, explicitly conferred upon Admiral Tyree the power summarily to deny Rachel Brawner access to the Gun Factory.
14
Article 0701 of the Regulations delineates the traditional responsibilities and duties of a commanding officer. It provides in part as follows:
15
'The responsibility of the commanding officer for his command is absolute, except when, and to the extent, relieved therefrom by competent authority, or as provided otherwise in these regulations. The authority of the commanding officer is commensurate with his responsibility, subject to the limitations prescribed by law and these regulations * * *.' Article 0734 of the Regulations provides:
16
'In general, dealers or tradesmen or their agents shall not be admitted within a command, except as authorized by the commanding officer:
17
'1. To conduct public business.
18
'2. To transact specific private business with individuals at the request of the latter.
19
'3. To furnish services and supplies which are necessary and are not otherwise, or are insufficiently, available to the personnel of the command.'
20
It would be difficult to conceive of a more specific conferral of power upon a commanding officer, in the exercise of his traditional command responsibility, to exclude from the area of his command a person in Rachel Brawner's status. Even without the benefit of the illuminating gloss of history, it could hardly be doubted that the phrase 'tradesmen or their agents' covered her status as an employee of M & M with explicit precision.6 But the meaning of the regulation need not be determined in vacuo. It is the verbalization of the unquestioned authority which commanding officers of military installations have exercised throughout our history.7
21
An opinion by Attorney General Butler in 1837 discloses that the power of a military commanding officer to exclude at will persons who earned their living by working on military bases was even then of long standing. Speaking of the Superintendent of the Military Academy, the Attorney General's opinion stated:
22
'(H)e has always regarded the citizens resident within the public limits—such as the sutler, keeper of the commons, tailor, shoemaker, artificers, etc., even though they own houses on the public grounds, or occupy buildings belonging to the United States * * *—as tenants at will, and liable to be removed whenever, in the opinion of the superintendent, the interests of the academy require it. 'This,' he observes, 'has been the practice since I have been in command; and such, I am told, was the usage under the administration of my predecessors." 3 Op.Atty.Gen. 268, 269.
23
This power has been expressly recognized many times. 'The power of a military commandant over a reservation is necessarily extensive and practically exclusive, forbidding entrance and controlling residence as the public interest may demand.' 26 Op.Atty.Gen. 91, 92. '(I)t is well settled that a post commander can, in his discretion, exclude all persons other than those belonging to his post from post and reservation grounds.' JAGA 1904/16272, 6 May 1904. 'It is well settled that a Post Commander can, under the authority conferred on him by statutes and regulations, in his discretion, exclude private persons and property therefrom, or admit them under such restrictions as he may prec ribe in the interest of good order and military discipline (1918 Dig.Op.J.A.G. 267 and cases cited).' JAGA 1925/680.44, 6 October 1925.
24
Under the explicit authority of Article 0734 of the Navy Regulations, and in the light of the historically unquestioned power of a commanding officer summarily to exclude civilians from the area of his command, there can remain no serious doubt of Admiral Tyree's authority to exclude Rachel Brawner from the Gun Factory upon the Security Officer's determination that she failed to meet the 'security requirements * * * of the Activity.' Her admittance to the installation in the first place was permissible, in the commanding officer's discretion, only because she came within the exception to the general rule of exclusion contained in the third paragraph of Article 0734 of the Regulations. And the plain words of Article 0734 made absolute the commanding officer's power to withdraw her permission to enter the Gun Factory at any time.
II.
25
The question remains whether Admiral Tyree's action in summarily denying Rachel Brawner access to the site of her former employment violated the requirements of the Due Process Clause of the Fifth Amendment. This question cannot be answered by easy assertion that, because she had no constitutional right to be there in the first place, she was not deprived of liberty or property by the Superintendent's action. 'One may not have a constitutional right to go to Bagdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.' Homer v. Richmond, 110 U.S.App.D.C. 226, 229, 292 F.2d 719, 722. It is the petitioners' claim that due process in this case required that Rachel Brawner be advised of the specific grounds for her exclusion and be accorded a hearing at which she might refute them. We are satisfied, however, that under the circumstances of this case such a procedure was not constitutionally required.
26
The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. 'For, though 'due process of law' generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, * * * yet, this is not universally true.' Den ex dem. Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 280, 15 L.Ed. 372. The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. Federal Communications Comm. v. WJR, 337 U.S. 265, 275—276, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353; Hannah v. Larche, 363 U.S. 420, 440, 442, 80 S.Ct. 1502, 1513—1514, 4 L.Ed.2d 1307; Hagar v. Reclamation District No. 108, 111 U.S. 701, 708—709, 4 S.Ct. 663, 667, 28 L.Ed. 569. "(D)ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.' It is 'compounded of history, reason, the past course of decisions * * *.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162—163, 71 S.Ct. 624, 643, 95 L.Ed. 817 (concurring opinion).
27
As these and other cases make clear, consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action. Where it has been possible to characterize that private interest (perhaps in oversimplification)8 as a mere privilege subject to the Executive's plenary power, it has traditionally been held that notice and hearing are not constitutionally required. Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 340—343, 29 S.Ct. 671, 676—677, 53 L.Ed. 1013; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317; Jay v. Boyd, 351 U.S. 345, 354—358, 76 S.Ct. 919, 924—927, 100 L.Ed. 1242; cf. Buttfield v. Strn ahan, 192 U.S. 470, 497, 24 S.Ct. 349, 355, 48 L.Ed. 525.
28
What, then, was the private interest affected by Admiral Tyree's action in the present case? It most assuredly was not the right to follow a chosen trade or profession. Cf. Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131. Rachel Brawner remained entirely free to obtain employment as a short-order cook or to get any other job, either with M & M or with any other employer. All that was denied her was the opportunity to work at one isolated and specific military installation.
29
Moreover, the governmental function operating here was not the power to regulate or license, as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, rather, as proprietor, to manage the internal operation of an important federal military establishment. See People v. Crane, 214 N.Y. 154, 167—169, 108 N.E. 427, 431—432, L.R.A.1916D, 550 (per Cardozo, J.); cf. Perkins v. Lukens Steel Co., 310 U.S. 113, 129, 60 S.Ct. 869, 877, 84 L.Ed. 1108. In that proprietary military capacity, the Federal Government, as has been pointed out, has traditionally exercised unfettered control.
30
Thus, the nature both of the private interest which has been impaired and the governmental power which has been exercised makes this case quite different from that of the lawyer in Schware, supra, the physician in Dent, supra, and the cook in Raich, supra. This case, like Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108, involves the Federal Government's dispatch of its own internal affairs. The Court has consistently recognized that an interest closely analogous to Rachel Brawner's, the interest of a government employee in retaining his job, can be summarily denied. It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer. In the Matter of Hennen, 13 Pet. 230, 246, 259, 10 L.Ed. 138; Crenshaw v. United States, 134 U.S. 99, 108, 10 S.Ct. 431, 434, 33 L.Ed. 825; Parsons v. United States, 167 U.S. 324, 331—334, 17 S.Ct. 880, 882—883, 42 L.Ed. 185; Keim v. United States, 177 U.S. 290, 293—294, 20 S.Ct. 574, 575, 44 L.Ed. 774; Taylor amd Marshall v. Beckham (No. 1), 178 U.S. 548, 575—578, 20 S.Ct. 890, 900—901, 44 L.Ed. 1187. This principle was reaffirmed quite recently in Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012. There we pointed out that Vitarelli, an Interior Department employee who had not qualified for statutory protection under the Civil Service Act, 5 U.S.C.A. § 632 et seq., 'could have been summarily discharged by the Secretary at any time without the giving of a reason * * *.' 359 U.S. at page 539, 79 S.Ct. at page 972.
31
It is argued that this view of Rachel Brawner's interest is inconsistent with our decisions in United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, and Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. In those two cases an individual's interest in government employment was recognized as entitled to constitutional protection, and it is contended that what the Court said in deciding them would require us to hold that Rachel Brawner was entitled to notice and hearing in this case. In United Public Workers the Court observed that '(n)one would deny' that 'Congress may not 'enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work." 330 U.S. at page 100, 67 S.Ct. at page 570. In Wieman the Court held unconstitutional a statute which excluded persons from state employment solely on the basis of membership in alleged 'Communist-front' or 'subversive' organizations, regardless of their knowledge concerning the activities and purposes of the organizations to which they had belonged. In the course of its decision the Court said, 'We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.' 344 U.S. at page 192, 73 S.Ct. at page 219.
32
Nothing that was said or decided in United Public Workers or Wieman would lead to the conclusion that Rachel Brawner could not be denied access to the Gun Factory without notice and an opportunity to be heard. Those cases demonstrate only that the state and federal governments, even in the exercise of their internal operations, do not constitutionally have the complete freedom of action enjoyed by a private employer. But to acknowledge that there exist constitutional restraints upon state and federal governments in dealing with their employees is not to say that all such employees have a constitutional right to notice and a hearing before they can be removed. We may assume that Rachel Brawner could not constitutionally have been excluded from the Gun Factory if the announced grounds for her exclusion had been patently arbitrary or discriminatory—that she could not have been kept out because she was a Democrat or a Methodist. It does not follow, however, that she was entitled to notice and a hearing when the reason advanced for her exclusion was, as here, entirely rational and in accord with the contract with M & M.
33
Finally, it is to be noted that this is not a case where government action has operated to bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment opportunity. See Wieman v. Updegraff, 344 U.S. 183, 190—191, 73 S.Ct. 215, 218—219, 97 L.Ed. 216; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 140—141, 71 S.Ct. 624, 632, 95 L.Ed. 817; cf. Bailey v. Richardson, 86 U.S.A.pp.D.C. 248, 182 F.2d 46, affirmed by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352.9 All this record shows is that, in the opinion of the Security Officer of the Gun Factory, concurred in by the Superintendent, Rachel Brawner failed to meet the particular security requirements of that specific military installation. There is nothing to indicate that this determination would in any way impair Rachel Barwner's employment opportunities anywhere else.10 As pointed out by Judge Prettyman, speaking for the Court of Appeals, 'Nobody has said that Brawner is disloyal or is suspected of the slightest shadow of intentional wrongdoing. 'Security requirements' at such an installation, like such requirements under many other circumstances, cover many matters other than loyalty.' 109 U.S.App.D.C. at page 49, 284 F.2d at page 183. For all that appears, the Security Officer and the Superintendent may have simply thought that Rachel Brawner was garrulous, or careless with her identification badge.
34
For these reasons, we conclude that the Due Process Clause of the Fifth Amendment was not violated in this case.
35
Affirmed.
36
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
37
I have grave doubts whether the removal of petitioner's identification badge for 'security reasons' without notice of charges or opportunity to refute them was authorized by statute or executive order. See Greene . McElroy, 1959, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377. But under compulsion of the Court's determination that there was authority, I pass to a consideration of the more important constitutional issue, whether petitioner has been deprived of liberty or property without due process of law in violation of the Fifth Amendment.
38
I read the Court's opinion to acknowledge that petitioner's status as an employee at the Gun Factory was an interest of sufficient definiteness to be protected by the Federal Constitution from some kinds of governmental injury. Indeed, this acknowledgment seems compelled by our cases. Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; United Public Workers of America (C.I.O.) v. Mitchell, 1947, 330 U.S. 75, 100, 67 S.Ct. 556, 569, 91 L.Ed. 754 (dictum); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982. In other words, if petitioner Brawner's badge had been lifted avowedly on grounds of her race, religion, or political opinions, the Court would concede that some constitutionally protected interest whether 'liberty' or 'property' it is unnecessary to state—had been injured. But, as the Court says, there has been no such open discrimination here. The expressed ground of exclusion was the obscuring formulation that petitioner failed to meet the 'security requirements' of the naval installation where she worked. I assume for present purposes that separation as a 'security risk,' if the charge is properly established, is not unconstitutional. But the Court goes beyond that. It holds that the mere assertion by government that exclusion is for a valid reason forecloses further inquiry. That is, unless the government official is foolish enough to admit what he is doing—and few will be so foolish after today's decision—he may employ 'security requirements' as a blind behind which to dismiss at will for the most discriminatory of causes.
39
Such a result in effect nullifies the substantive right—not to be arbitrarily injured by Government—which the Court purports to recognize. What sort of right is it which enjoys absolutely no procedural protection? I do not mean to imply that petitioner could not have been excluded from the installation without the full procedural panoply of first having been subjected to a trial, with cross-examination and confrontation of accusers, and proof of guilt beyond a reasonable doubt. I need not go so far in this case. For under today's holding petitioner is entitled to no process at all. She is not told what she did wrong; she is not given a chance to defend herself. She may be the victim of the basest calumny, perhaps even the caprice of the government officials in whose power her status rested completely. In such a case, I cannot believe that she is not entitled to some procedures. '(T)he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.' Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (concurring opinion). See also Homer v. Richmond, 1961, 110 U.S.App.D.C. 226, 292 F.2d 719. Parker v. Lester, 9 Cir., 1955, 227 F.2d 708. In sum, the Court holds that petitioner has a right not to have her identification badge taken away for an 'arbitrary' reason, but no right to be told in detail what the reason is, or to defend her own innocence, in order to show, perhaps, that the true reason for deprivation was one forbidden by the Constitution. That is an internal contradiction to which I cannot subscribe.
40
One further circumstance makes this particularly a case where procedural requirements of fairness are essential. Petitioner was not simply excluded from the base summarily, without a notice and chance to defend herself. She was excluded as a 'security risk,' that designation most odious in our times. The Court consoles itself with the speculation that she may have been merely a rrulous, or careless with her identification badge, and indeed she might, although she will never find out. But, in the common understanding of the public with whom petitioner must hereafter live and work, the term 'security risk' carries a much more sinister meaning. See Beilan v. Board of Public Education, 1958, 357 U.S. 399, 421—423, 78 S.Ct. 1317, 1325, 1330—1331, 2 L.Ed.2d 1414 (dissenting opinion). It is far more likely to be taken as an accusation of communism or disloyalty than imputation of some small personal fault. Perhaps the Government has reasons for lumping such a multitude of sins under a misleading term. But it ought not to affix a 'badge of infamy,' Wieman v. Updegraff, supra, 344 U.S. at page 191, 73 S.Ct. at page 218, to a person without some statement of charges, and some opportunity to speak in reply.
41
It may be, of course, that petitioner was justly excluded from the Gun Factory. But, in my view, it is fundamentally unfair, and therefore violative of the Due Process Clause of the Fifth Amendment, to deprive her of a valuable relationship so summarily.
1
The name of the Naval Gun Factory has now been officially changed to Naval Weapons Plant. It will be referred to as the 'Gun Factory' in this opinion.
2
The appeal was originally heard by a panel of three judges, and the District Court's judgment was reversed, one judge dissenting. After rehearing en banc, the original opinion was withdrawn, and the District Court's judgment was affirmed. 109 U.S.App.D.C. 39, 284 F.2d 173.
3
See R.S. § 1547 (1875) which was derived from the Act of July 14, 1862, c. 164, § 5, 12 Stat. 565. See also the Act of April 24, 1816, c. 69, § 9, 3 Stat. 298; the Act of March 3, 1813, c. 52, § 5, 2 Stat. 819.
4
See also 25 Op.Atty.Gen. 270.
5
The absence of presidential approa l was relied upon in one case as a basis for finding certain administrative action unauthorized. See Phillips v. United States Grain Corp., 2 Cir., 279 F. 244, 248—249, reversed on other grounds 261 U.S. 106, 43 S.Ct. 283, 67 L.Ed. 552. See also 25 Op.Atty.Gen. 270, 275.
6
A tradesman has been defined by Webster as 'a shopkeeper; also, one of his employees.' Webster, New International Dictionary (Second Edition, Unabridged, 1958), 2684.
7
The contrast with the history of the security program involved in Greene v. McElroy is striking. There it was pointed out that '(p)rior to World War II, only sporadic efforts were made to control the clearance of persons who worked in private establishments which manufactured materials for national defense.' 360 U.S. at page 493, 79 S.Ct. at page 1412.
8
See Davis, The Requirement of a Trial-Type Hearing, 70 Harv.L.Rev. 193, 222—224.
9
Compare Davis, The Requirement of a Trial-Type Hearing, 70 Harv.L.Rev. 193, 229—230, and Note, The Supreme Court, 1950 Term, 65 Harv.L.Rev. 107, 156—158, with Richardson, Problems in the Removal of Federal Civil Servants, 54 Mich.L.Rev. 219, 240—241.
10
In oral argument government counsel emphatically represented that denial of access to the Gun Factory would not 'by law or in fact' prevent Rachel Brawner from obtaining employment on any other federal property.
| 23
|
367 U.S. 820
81 S.Ct. 1826
6 L.Ed.2d 1191
Trayton L. LATHROP, Appellant,v.Josephine D. DONOHUE.
No. 200.
Argued Jan. 18, 1961.
Decided June 19, 1961.
Rehearing Denied Oct. 9, 1961.
See 82 S.Ct. 23.
[Syllabus from 820 intentionally omitted]
Mr. Trayton L. Lathrop, pro se, and Mr. Leon E. Isaksen, Madison, Wis., for appellant.
Messrs. Gordon Sinykin, Madison, Wis., and John W. Reynolds, Green Bay, Wis., for appellee.
Mr. Justice BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice CLARK and Mr. Justice STEWART join.
1
The Wisconsin Supreme Court integrated the Wisconsin Bar by an order which created 'The State Bar of Wisconsin' on January 1, 1957, under Rules and Bylaws promulgated by the court. In re Integration of the Bar, 273 Wis. 281, 77 N.W.2d 602; id., at page vii. The order originally was effective for a two-year trial period, but
[Amicus Curaie intentionally omitted] in 1958 was continued indefinitely. In re Integration of the Bar, 5 Wis.2d 618, 93 N.W.2d 601. Alleging that the 'rules and by-laws required the plaintiff to enroll in the State Bar of Wisconsin and to pay dues to the treasurer of the State Bar of Wisconsin on the penalty of being deprived of his livelihood as a practicing lawyer, if he should fail to do so,' the appellant, a Wisconsin lawyer, brought this action in the Circuit Court of Dane County for the refund of $15 annual dues for 1959 paid by him under protest to appellee, the Treasurer of the State Bar. He attached to his complaint a copy of the letter with which he had enclosed his check for the dues. He stated in the letter that he paid under protest because 'i do not like to be coerced to support an organization which is authorized and directed to engage in political and propaganda activities. * * * A major portion of the activities of the State Bar as prescribed by the Supreme Court of Wisconsin are of a political and propaganda nature.' His complaint alleges more specifically that the State Bar promotes 'law reform' and 'makes and opposes proposals for changes in * * * laws and constitutional provisions and aruges to legislative bodies and their committees and to the lawyers and to the people with respect to the adoption of changes in * * * codes, laws and constitutional provisions.' He alleges further that in the course of this activity 'the State Bar of Wisconsin has used its employees, property and funds in active, unsolicited opposition to the adoption of legislation by the Legislature of the State of Wisconsin, which was favored by the plaintiff, all contrary to plaintiff's convictions and beliefs.' His complaint concludes: 'The plaintiff bases this action of his claim that the defendant has unjustly received, held, and disposed of funds of the plaintiff in the amount of $15.00, which to the knowledge of the defendant were paid to the defendant by the plaintiff unwillingly and under coercion, and that such coercion was and is entailed in the rules and by-laws of the State Bar of Wisconsin continued in effect by the aforesaid order of the Supreme Court of the State of Wisconsin * * *; and the said order insofar as it coreces the plaintiff to support the State Bar of Wisconsin, is unconstitutional and in violation of the Fourteenth Amendment of the Constitution of the United States * * *.'
2
The appellee demurred to the complaint on the ground, among others,1 that it failed to state a cause of action. The demurrer was sustained and the complaint was dismissed. The Supreme Court of Wisconsin, on appeal, stated that the Circuit Court was without jurisdiction to determine the questions raised by the complaint. However, treating the case as if originally and properly brought in the Supreme Court, the court considered appellant's constitutional claims, not only on the allegations of the complaint, but also upon the facts, of which it took judicial notice, as to its own actions leading up to the challenged order, and as to all activities, including legislative activities, of the State Bar since its creation.2 The judgment of the Circuit Court dismissing the complaint was affirmed. 10 Wis.2d 230, 102 N.W.2d 404. The Supreme Court held that the requirement that appellant be an enrolled dues-paying member of the State Bar did not abridge his rights of freedom of association, and also that his rights to free speech were not violated because the State Bar used his money to support legislation with which he disagreed.
3
An appeal was brought here by appellant under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), which authorizes our review of a final judgment rendered by the highest court of a State 'By appeal, where is drawn in question the validity of a (state) statute * * *.' We postponed to the hearing on the merits the question whether the order continuing the State Bar indefinitely under the Rules and Bylaws is a 'statute' for the purposes of appeal under § 1257(2). 364 U.S. 810, 81 S.Ct. 57, 5 L.Ed.2d 41.
4
We think that the order is a 'statute' for the purposes of § 1257(2). Under that section, the legislative character of challenged state action, rather than the nature of the agency of the State performing the act, is decisive of the question of jurisdiction. It is not necessary that the state legislature itself should have taken the action drawn in question. In construing the similar jurisdictional provision in the Judiciary Act of 1867, 14 Stat. 385, we said: 'Any enactment, from whatever source originating, to which a State gives the force of law is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this court.' Williams v. Bruffy, 96 U.S. 176, 183, 24 L.Ed. 716. We likewise said of the provision of the Act of 1925, 43 Stat. 936, which is the r esent § 1257(2): '* * * the jurisdictional provision uses the words 'a statute of any state' in their larger sense and is not intended to make a distinction between acts of a state legislature and other exertions of the State's law-making power, but rather to include every act legislative in character to which the state gives its sanction.' King Manufacturing Co. v. City Council, 277 U.S. 100, 104—105, 48 S.Ct. 489, 490, 72 L.Ed. 801. Thus this Court has upheld jurisdiction on appeal of challenges to municipal ordinances, e.g., King Manufacturing Co. v. City Council, supra; Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; certain types of orders of state regulatory commission, e.g., Lake Erie & Western R. Co. v. State Public Utilities Comm., 249 U.S. 422, 39 S.Ct. 345, 63 L.Ed. 684; and some orders of other state agencies, e.g., Hamilton v. Regents, 293 U.S. 245, 257—258, 55 S.Ct. 197, 201, 202, 79 L.Ed. 343. It is true that in these cases the state agency the action of which was called in question was exercising authority delegated to it by the legislature However, this fact was not determinative, but was merely relevant to the character of the State's action. The absence of such a delegation does not preclude consideration of the exercise of authority as a statute.
5
We are satisfied that this appeal is from an act legislative in nature and within § 1257(2). Integration of the Bar was effected through an interplay of action by the legislature and the court directed to fashioning a policy for the organization of the legal profession. The Wisconsin Legislature initiated the movement for integration of the Bar in 1943 when it passed the statute, chapter 315 of the Wisconsin Laws for that year, now Wis.Rev.Stat. § 256.31, providing:
6
'(1) There shall be an association to be known as the 'State Bar of Wisconsin' composed of persons licensed to practice law in this state, and membership in such association shall be a condition precedent to the right to practice law in Wisconsin.
7
'(2) The supreme court by appropriate orders shall provide for the organization and government of the association and shall define the rights, obligations and conditions of membership therein, to the end that such association shall promote the public interest by maintaining high standards of conduct in the legal profession and by aiding in the efficient administration of justice.'
8
The State Supreme Court held that this statute was not binding upon it because '(t)he power to integrate the bar is an incident to the exercise of the judicial power * * *.' Integration of Bar Case, 244 Wis. 8, 40, 11 N.W.2d 604, 619, 12 N.W.2d 699, 151 A.L.R. 586. The court twice refused to order integration, 244 Wis. 8, 11 N.W.2d 604, 12 N.W.2d 699, 151 A.L.R. 586; 249 Wis. 523, 25 N.W.2d 500, before taking the actions called in question on this appeal, 273 Wis. 281, 77 N.W.2d 602; 5 Wis.2d 618, 93 N.W.2d 601. Nevertheless, the court in rejecting the first petition, 244 Wis. at pages 51—52, 11 N.W.2d at pages 623—624, recognized that its exercise of the power to order integration of the Bar would not be adjudicatory, but an action in accord with and in implementation of the legislative declaration of public policy.3 The court said:
9
'It is obvious that whether the general welfare requires that the bar be treated as a corporate body is a matter for the consideration of the legislature. * * * While the legislature has no constitutional power to compel the court to act or, if it acts, to act in a particular way in the discharge of the judicial function, it may nevertheless, with propriety and in the exercise of its power and the discharge of its duty, declare itself upon questions relating to the general welfare which includes the integration of the bar. The court, as has been exemplified during the entire history of the state, will respect such declarations and, as already indicated, adopt them so far as they do not embarrass the court or impair its constitutional functions.'
10
Integration of the Bar in Wisconsin bore no resemblance to adjudication. The State Supreme Court's action disposed of no litigation between parties. Rather the court sought to regulate the profession by applying its orders to all present members of the Bar and to all persons coming within the described class in the future. Cf. Hamilton v. Regents, supra, 293 U.S. at page 258, 55 S.Ct. at page 202; King Manufacturing Co. v. City Council, supra, 277 U.S. at page 104, 48 S.Ct. at page 490. As such, the action had the characteristics of legislation. We conclude that the appeal is cognizable under § 1257(2). We therefore proceed to the consideration of the merits.
11
The core of appellant's argument is that he cannot constitutionally be compelled to join and give support to an organization which has among its functions the expression of opinion on legislative matters and which utilizes its property, funds and employees for the purposes of influencing legislation and public opinion toward legislation.4 But his compulsory enrollment imposes only the duty to pay dues.5 The Supreme Court of Wisconsin so interpreted its order and its interpretation is of course binding on us. The court said: 'The rules and by-laws of the State Bar, as approved by this court, do not compel the plaintiff to associate with anyone. He is free to attend or not attend its meetings or vote in its elections as he chooses. The only compulsion to which he has been subjected by the integration of the bar is the payment of the annual dues of $15 per year.' 10 Wis.2d at page 237, 102 N.W.2d at page 408.6 We therefore are confronted, as we were in Railway Employes' Department v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, only with a question of compelled financial support of group activities, not with involuntary membership in any other aspect. Cf. International Association of Machinists v. Street, 367 U.S. 740, at pages 748—749, 81 S.Ct. 1784, at pages 1789—1790, 6 L.Ed.2d 1141.
12
A review of the activities of the State Bar authorized under the Rules and Bylaws is necessary to decision. The purposes of the organization are stated as follows in Rule 1, § 2: 'to aid the courts in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence and public service and high standards of conduct; to safeguard the proper professional interests of the members of the bar; to encourage the formation and activities of local bar associations; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relations of the bar to the public, and to publish information relating thereto; to the end that the public responsibilities of the legal profession may be more effectively discharged.' To achieve these purposes standing committees and sections are established.7 The Rules also assign the organization a major role in the State's procedures for the discipline of members of the bar for unethical conduct. A Committee on Grievances is provided for each of the nine districts into which the State is divided. Each committee receives and investigates complaints of alleged misconduct of lawyers within its district. Each committee also investigates and processes petitions for reinstatement of lawyers and petitions for late enrollment in the State Bar of lawyers who fail to enroll within a designated period after becoming eligible to enroll.
13
The State Legislature and the State Supreme Court have informed us of the public interest sought to be served by the integration of the bar. The statute states its desirability 'to the end that such association shall promote the public interest by maintaining high standards of conduct in the legal profession and by aiding in the efficient administration of justice.' This theme is echoed in the several Supreme Court opinions. The first opinion after the passage of the statute noted the 'widespread general recognition of the fact that the conduct of the bar is a matter of general public interest and concern.' 244 Wis. 8, 16, 11 N.W.2d 604, 608, 12 N.W.2d 699, 15 A.L.R. 586. But the court's examination at that time of existing procedures governing admission and discipline of lawyers and the prevention of the unauthorized practice of the law persuaded the court that the public interest was being adequately served without integration. The same conclusion was reached when the matter was reviewed again in 1946. At that time, in addition to reviewing the desirability of integration in the context of the problems of admission and discipline, the court considered its utility in other fields. The matter of post-law school or post-admission education of lawyers was one of these, The court believed, however, that while an educational program was a proper objective, the one proposed was 'nebulous in outline and probably expensive in execution.' 249 Wis. 523, 530, 25 N.W.2d 500, 503. The Court also observed, 'There are doubtless many other useful activities for which dues might properly be used, but what they are does not occur to us and no particular one seems to press for action.' Id., 249 Wis. 523, 530, 25 N.W.2d 500, 503.
14
The court concluded in 1956, however, that integration might serve the public interest and should be given a two-year trial.8 It decided to 'require the bar to act as a unit to promote high standards of practice and the economical and speedy enforcement of legal rights,' 273 Wis. 281, 283, 77 N.W.2d 602, 603, because it had come to the conclusion that efforts to accomplish these ends in the public interest through voluntary association had not been effective. '(T) oo many lawyers have refrained or refused to join, * * * membership in the voluntary association has become static, and * * * a substantial minority of the lawyers in the state are not associated with the State Bar Association.' Id., 273 Wis. 281, 283, 77 N.W.2d 602, 603. When the order was extended indefinitely in 1958 the action was expressly grounded on the finding that, 'Members of the legal profession by their admission to the bar become an important part of (the) process (of administering justice) * * *. An independent, active, and intelligent bar is necessary to the efficient administration of justice by the courts.' 5 Wis.2d 618, 622, 93 N.W.2d 601, 603.
15
The appellant attacks the power of the State to achieve these goals through integration on the ground that because of its legislative activities, the State Bar partakes of the character of a political party. But on their face the purposes and h e designated activities of the State Bar hardly justify this characterization. The inclusion among its purposes that it be a forum for a 'discussion of * * * law reform' and active in safeguarding the 'proper professional interests of, the members of the bar,' in unspecified ways, does not support it. Only two of the 12 committees, Administration of Justice, and Legislation, are expressly directed to concern themselves in a substantial way with legislation. Authority granted the other committees directs them to deal largely with matters which appear to be wholly outside the political process and to concern the internal affairs of the profession.
16
We do not understand the appellant to contend that the State Bar is a sham organization deliberately designed to further a program of political action. Nor would such a contention find support in this record. Legislative activity is carried on under a statement of policy which followed the recommendations of a former president of the voluntary Wisconsin Bar Association, Alfred LaFrance. He recommended that the legislative activity of the State Bar should have two distinct aspects: (1) 'the field of legislative reporting or the dissemination of information concerning legislative proposals. * * * This is a service-information function that is both useful to the general membership and to the local bar associations'; and (2) 'promotional or positive legislative activity.' As to the latter he advised that 'the rule of substantial unanimity should be observed. Unless the lawyers of Wisconsin are substantially for or against a proposal, the State Bar should neither support nor oppose the proposal.' Wis.Bar Bull., Aug. 1957, pp. 41—42. 'We must remember that we are an integrated Bar, that the views of the minority must be given along with the views of the majority where unanimity does not appear. The State Bar represents all of the lawyers of this state and in that capacity we must safeguard the interests of all.' Id., p. 44. The rules of policy and procedure for legislative activity follow these recommendations.9
17
Under its charter of legislative action, the State Bar has participated in political activities in these principal categorites:
18
(1) its executive director is registered as a lobbyist in accordance with state law. For the legislative session 1959—1960, the State Bar listed a $1,400 lobbying expense; this was a percentage of the salary of the executive director, based on an estimate of the time he spent in seeking to influence legislation, amounting to 5% of his salary for the two years. The registration statement signed by the then president of the State Bar added the explanatory note: 'His activities as a lobbyist on behalf of the State Bar are incidental to his general work and occupy only a small portion of his time.'
19
(2) The State Bar, through its Board of Governors or Executive Committee, has taken a formal position with respect to a number of questions of legislative policy. These have included such subjects as an increase in the salaries of State Supreme Court justices; making attorneys notaries public; amending the Federal Career Compensation Act, 37 U.S.C.A. § 231 et seq., to apply to attorneys employed with the Armed Forces the same provisions for special pay and promotion available to members of other professions; improving pay scales of attorneys in state service; court reorganization; extending personal jurisdiction over nonresidents; allowing the recording of unwitnessed conveyances; use of deceased partners' names in firm names; revision of the law governing federal tax liens; law clerks for State Supreme Court justices; curtesy and dower; securities transfers by fiduciaries; jurisdiction of county courts over the administration of inter vivos trusts; special appropriations for resa rch for the State Legislative Council.
20
(3) The standing committees, particularly the Committees on Legislation and Administration of Justice, and the sections have devoted considerable time to the study of legislation, the formulation of recommendations, and the support of various proposals. For example, the president reported in 1960 that the Committee on Legislation 'has been extremely busy, and through its efforts in cooperation with other interested agencies has been instrumental in securing the passage of the Court Reorganization bill, the bill of the Judicial Council expanding personal jurisdiction, and at this recently resumed session a bill providing clerks for our Supreme Court, and other bills of importance to the administration of justice.' Wis.Bar Bull., Aug. 1960, p. 41. See also id., June 1959, pp. 64—65. A new subcommittee, on federal legislation, was set up by this committee following a study which found need for such a group 'TO DEAL WITH FEDERAL LEGISLATION AFFECTIng the practice of law, or lawyers as a class, or the jurisdiction, procedure and practice of the Federal courts and other Federal tribunals, or creation of new Federal courts or judgeships affecting this state, and comparable subjects * * *.' Board of Governors Minutes, Dec. 11, 1959. Furthermore, legislative recommendations and activities have not been confined to those standing committees with the express function in the bylaws of considering legislative proposals. See, e.g., Report of the Committee on Legal Aid, Wis.Bar Bull., June 1960, p. 61; Report of the Committee on Legal Aid, id., June 1959, pp. 61—62. Many of the positions on legislation taken on behalf of the State Bar by the Board of Governors or the Executive Committee have also followed studies and recommendations by the sections. See, e.g., Report of the Real Property, Probate and Trust Law Section, Wis.Bar Bull., June 1960, p. 51; Report of the Corporation and Business Law Section, id., p. 56.
21
(4) A number of special committees have been constituted, either ad hoc to consider particular legislative proposals, or to perform continuing functions which may involve the consideration of legislation. Thus special committees have considered such subjects as extension of personal jurisdiction over nonresidents, law clerks for State Supreme Court justices, and revision of the federal tax lien laws. The Special Committee on World Peace through Law, which has encouraged the formation of similar committees on the local level, has sponsored debates on subjects such as the repeal of the Connally reservation, believing that 'the general knowledge of laymen as well as of lawyers concerning the possibility of world peace through law is limited and requires a constant program of education and discussion.' Wis.Bar Bull., June 1960, p. 54.
22
(5) The Wisconsin Bar Bulletin, sent to each member, prints articles suggesting changes in state and federal law. And other publications of the State Bar deal with the progress of legislation.
23
But it seems plain that legislative activity is not the major activity of the State Bar. The activities without apparent political coloration are many. The Supreme Court provided in an appendix to the opinion below, 'an analysis of (State Bar) * * * activities and the public purpose served thereby.' 10 Wis.2d at page 246, 102 N.W.2d at page 412. The court found that 'The most extensive activities of the State Bar are those directed toward postgraduate education of lawyers,' and that 'Post-graduate education of lawyers is in the public interest because it promotes the competency of lawyers to handle the legal matters entrusted to them by those of the general public who employ them.' 10 Wis.2d at page 246, 102 N.W.2d at pages 412—413.10 It found that the State Bar's participation in the handling of grievances improved the efficiency and effectiveness of this work.11 It found that the public interest was furthered by the Committee on Unauthorized Practice of La which was carrying on 'a constant program since numerous trades and occupations keep expanding their services and frequently start offering services which constitute the practice of the law.' 10 Wis.2d at page 248, 102 N.W.2d at page 413.12 The court also concluded that the Legal Aid Committee had 'done effective and noteworthy work to encourage the local bar associations of the state to set up legal aid systems in their local communities * * *. Such committee has also outlined recommended procedures for establishing and carrying through such systems of providing legal aid.' 10 Wis.2d at page 249, 102 N.W.2d at page 414.13 In the field of public relations the court found that the 'chief activity' of the State Bar was the 'preparation, publication, and distribution to the general public of pamphlets dealing with various transactions and happenings with which laymen are frequently confronted, which embody legal problems.' 10 Wis.2d at page 247, 102 N.W.2d at page 413.14 Moreover, a number of studies have been made of programs, not involving political action, to further the economic well-being of the profession.15
24
This examination of the purposes and functions of the State Bar shows its multifaceted character, in fact as well as in conception. In our view the case presents a claim of impingement upon freedom of association no different from that which we decided in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112. We there held that § 2, Eleventh of the Railway Labor Act, 45 U.S.C. § 152, 45 U.S.C.A. § 152, subd. 11, Eleventh, did not on its face abridge protected rights of association in authorizing union-shop agreements between interstate railroads and unions of their employees conditioningt he employees' continued employment on payment of union dues, initiation fees and assessments. There too the record indicated that the organizations engaged in some activities similar to the legislative activities of which the appellant complains. See International Association of Machinists v. Street, ante, 367 U.S. at page 748, 81 S.Ct. at page 1789, note 5. In rejecting Hanson's claim of abridgment of his rights of freedom of association, we said, 'On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar.' 351 U.S. at page 238, 76 S.Ct. at page 721. Both in purport and in practice the bulk of State Bar activities serve the function, or at least so Wisconsin might reasonably believe, of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State, without any reference to the political process. It cannot be denied that this is a legitimate end of state policy.16 We think that the Supreme Court of Wisconsin, in order to further the State's legitimate interests in raising the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program, the lawyers, even though the organization created to attain the objective also engages in some legislative activity. Given the character of the integrated bar shown on this record, in the light of the limitation of the membership requirement to the compulsory payment of reasonable annual dues, we are unable to find any impingement upon protected rights of association.
25
However, appellant would have us go farther and decide whether his constitutional rights of free speech are infringed if his dues money is used to support the political activities of the State Bar. The State Supreme Court treated the case as raising the question whether First Amendment rights were violated 'because part of his dues money is used to support causes to which he is opposed.' 10 Wis.2d at page 238, 102 N.W.2d at page 409. The Court in rejecting appellant's argument reasoned that '(t)he right to practice law is not a right but is a privilege subject to regulation. * * * The only limitation upon the state's power to regulate the privilege of the practice of law is that the regulations adopted do not impose an unconstitutional burden or deny due process.' Id., 10 Wis.2d at pages 237—238, 102 N.W.2d at page 408. The Court found no such burden because '* * * the public welfare will be promoted by securing and publicizing the composite judgment of the members of the bar of the state on measures directly affecting the administration of justice and the practice of law. The general public and the legislature are entitled to know how the profession as a whole stands on such type of proposed legislation. * * * The only challenged interference with his liberty is the exaction of annual dues to the State Bar, in the nature of the imposition of an annual license fee, not unreasonable or unduly burdensome in amount, part of which is used to advocate causes to which he is opposed. However, this court, in which is vested the power of the state to regulate the practice of law, has determined that it promotes the public interest to have public expression of the views of a majority of the lawyers of the state, with respect to legislation affecting the administration of justice and the practice of law, the same to be voiced through their own democratically chosen representatives comprising the board of governors of the State Bar. The public interest so promoted far outweighs the slight inconvenience to the plaintiff resulting from his required payment of the annual dues.' Id., 10 Wis.2d at pages 239, 242, 102 N.W.2d at pages 409, 411.17
26
We are persuaded that on this record we have no sound basis for deciding appellant's constitutional claim insofar as it rests on the assertion that his rights of free speech are violated by the use of his money for causes which he opposes. Even if the demurrer is taken as admitting all the factual allegations of the complaint, even if these allegations are construed most expansively, and even if, like the Wisconsin Supreme Court, we take judicial notice of the political activities of the State Bar, still we think that the issue of impingement upon rights of free speech through the use of exacted dues is no more concretely presented for adjudication than it was in Hanson. Compare International Association of Machinists v. Street, 367 U.S. 740, at pages 747—749, 81 S.Ct. 1784, at pages 1788—1790, 6 L.Ed.2d 1141. Nowhere are we clearly apprised as to the views of the appellant on any particular legislative issues on which the State Bar has taken a position, or as to the way in which and the degree to which funds compulsorily exacted from its members are used to support the organization's political activities. There is an allegation in the complaint that the State Bar had 'used its employees, property and funds in active, unsolicited opposition to the adoption of legislation by the Legislature of the State of Wisconsin, which was favored by the plaintiff, all contrary to the plaintiff's convictions and beliefs,' but there is no indication of the nature of this legislation, nor of appellant's views on particular proposals, nor of whether any of his dues were used to support the State Bar's positions. There is an allegation that the State Bar's revenues amount to about $90,000 a year, of which $80,000 is derived from dues, but there is no indication in the record as to how political expenditures are financed and how much has been expended for political causes to which appellant objects. The facts of which the Supreme Court took judicial notice do not enlighten us on these gaps in the record. The minutes of the Board of Governors and Executive Committee of the State Bar show that the organization has taken one position o another on a wide variety of issues, but those minutes give no indication of appellant's views as to any of such issues or of what portions of the expenditure of funds to propagate the State Bar's views may be properly apportioned to his dues payments. Nor do the other publications of the State Bar. The Supreme Court assumed, as apparently the trial court did in passing on the demurrer, that the appellant was personally opposed to some of the legislation supported by the State Bar. But its opinion still gave no description of any specific measures he opposed, or the extent to which the State Bar actually utilized dues funds for specific purposes to which he had objected. Appellant's phrasing of the question presented on appeal in this Court is not responsive to any of these inquiries as to facts which may be relevant to the determination of constitutional questions surrounding the political expenditures. It merely asks whether a requirement of financial support of an association which, 'among other things, uses its property, funds and employees for the purpose of influencing a broad range of legislation and public opinion' can be constitutionally imposed on him. This statement of the question, just as does his complaint, appears more a claim of the right to be free from compelled financial support of the organization because of its political activities, than a challenge by appellant to the use of his dues money for particular political causes of which he disapproves. Moreover, although the court below purported to decide as against all Fourteenth Amendment claims that the appellant could be compelled to pay his annual dues, even though 'part * * * is used to support causes to which he is opposed,' on oral argument here appellant disclaimed any necessity to show that he had opposed the position of the State Bar on any particular issue and asserted that it was sufficient that he opposed the use of his money for any political purposes at all. In view of the state of the record and this disclaimer, we think that we would not be justified in passing on the constitutional question considered below. '(T)he questions involving the power of * * * (the State) come here not so shaped by the record and by the proceedings below as to bring those powers before this Court as leanly and as sharply as judicial judgment upon an exercise of * * * (state) power requires.' United States v. C.I.O., 335 U.S. 106, 126, 68 S.Ct. 1349, 1359, 92 L.Ed. 1849 (concurring opinion). Cf. United States v. U.A.W.-C.I.O., 352 U.S. 567, 589—592, 77 S.Ct. 529, 540, 541, 1 L.Ed.2d 763.
27
We, therefore, intimate no view as to the correctness of the conclusion of the Wisconsin Supreme Court that the appellant may constitutionally be compelled to contribute his financial support to political activities which he opposes. That issue is reserved, just as it was in Hanson, see International Association of Machinists v. Street, 367 U.S. 740, at pages 746—749, 81 S.Ct. 1784, at pages 1788—1790, 6 L.Ed.2d 1141. Upon this understanding we four vote to affirm. Since three of our colleagues are of the view that the claim which we do not decide is properly here and has no merit, and on that ground vote to affirm, the judgment of the Wisconsin Supreme Court is affirmed.
28
Affirmed.
29
Mr. Justice HARLAN, with whom Mr. Justice FRANKFURTER joins, concurring in the judgment.
30
I think it most unfortunate that the right of the Wisconsin Integrated Bar to use, in whole or in part, the dues of dissident members to carry on legislative and other programs of law reform doubtless among the most useful and significant branches of its authorized activities—should be left in such disquieting Constitutional uncertainty. The effect of that uncertainty is compounded by the circumstance that it will doubtless also reach into the Integrated Bars of twenty-five other States.1
31
I must say, with all respect, that the reasons stated in the plurality opinion for avoiding decision of this Constitutional issue can hardly be regarded as anything but trivial. For, given the unquestioned fact that the Wisconsin Bar uses or threatens to use, over appellant's protest, some part of its receipts to further or oppose legislation on matters of law reform and the administration of justice, I am at a loss to understand how it can be thought that this record affords 'no sound basis' for adjudicating the issue simply because we are not 'clearly apprised as to the views of the appellant on any particular legislative issues on which the State Bar has taken a position, or as to the way in which and the degree to which funds compulsorily exacted from its members are used to support the organization's political activities' (367 U.S. at pages 845—846, 81 S.Ct. at page 1839). I agree with my Brother BLACK that the Constitutional issue is inescapably before us.
32
Unless one is ready to fall prey to what are at best but alluring abstractions on rights of free speech and association, I think he will be hard put to it to find any solid basis for the Constitutional qualms which, though unexpressed, so obviously underlie the plurality opinion, or for the views of my two dissenting Brothers, one of whom finds unconstitutional the entire Integrated Bar concept (367 U.S. at pages 877—885, 81 S.Ct. at pages 1856—1860, and the other of whom holds the operations of such a Bar unconstitutional to the extent that they involve taking 'the money of protesting lawyers' and using 'it to support causes they are against' (367 U.S. at page 871, 81 S.Ct. at page 1852).
33
For me, there is a short and simple answer to all of this. The Hanson case, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, decided by a unanimous Court, surely lays at rest all doubt that a State may Constitutionally condition the right to practice law upon membership in an integrated bar association, a condition fully as justified by state needs as the union shop is by federal needs. Indeed the conclusion reached in Hanson with respect to compulsory union membership seems to me a fortiori true here, in light of the supervisory powers which the State, through its courts, has traditionally exercised over admission to the practice of law, see 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. 82, 81 S.Ct. 978, 6 L.Ed.2d 135, and over the conduct of lawyers after admission, see Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. The Integrated Bar was in fact treated as such an a fortiori case in the Hanson opinion itself. Supra, 351 U.S. at page 238, 76 S.Ct. at page 721. So much, indeed, is recognized by the plurality opinion which rejects the contention that Wisconsin could not Constitutionally require appellant, a lawyer, to become and remain a dues-paying member of the State Bar.
34
That being so, I do not understand why it should become unconstitutional for the State Bar to use appellant's dues to fulfill some of the very purposes for which it was established. I am wholly unable to follow the force of reasoning which, on the one hand, denies that compulsory dues-paying membership in an Integrated Bar infringes 'freedom of association,' and, on the other, in effect affirms that such membership, to the extent it entails the use of a dissident member's dues for legitimate Bar purposes, infringes 'freedom of speech.' This is a refinement between two aspects of what, in circumstances like these, is essentially but a single facet of the 'liberty' assured by the Fourteenh Amendment, see N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, that is too subtle for me to grasp.
35
Nevertheless, since a majority of the Court here, as in the Street case, ante, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 has deemed the 'free speech' issue to be distinct from that of 'free association,' I shall also treat the case on that basis. From a Constitutional standpoint, I think that there can be no doubt about Wisconsin's right to use appellant's dues in furtherance of any of the purposes now drawn in question.2 Orderly analysis requires that there be considered, first, the respects in which it may be thought that the use of a member's dues for causes he is against impinges on his right of free speech, and second, the nature of the state interest offered to justify such use of the dues exacted from him. I shall also add some further observations as to the over-all Constitutionality of the Integrated Bar concept.
I.
36
To avoid the pitfall of disarming, and usually obscuring, generalization which too often characterizes discussion in this Constitutional field, I see no alternative (even at the risk of being thought to labor the obvious) but to deal in turn with each of the various specific impingements on 'free speech' which have been suggested or intimated to flow from the State Bar's use of an objecting member's dues for the purposes involved in this case. As I understand things, it is said that the operation of the Integrated Bar tends (1) to reduce a dissident member's 'economic capacity' to espouse causes in which he believes; (2) to further governmental 'establishment' of political views; (3) to threaten development of a 'guild system' of closed, self-regulating professions and businesses; (4) to 'drown out' the voice of dissent by requiring all members of the Bar to lend financial support to the views of the majority; and (5) to interfere with freedom of belief by causing 'compelled affirmation' of majority-held views. With deference, I am bound to say that, in my view, all of these arguments border on the chimerical.
37
1. Reduction in 'Economic Capacity' to Espouse Views.
38
This argument which, if indeed suggested at all, is intimated only obliquely, is that the mere exaction of dues money works a Constitutionally cognizable inhibition of speec by reducing the resources otherwise available to a dissident member for the espousal of causes in which he believes. The untenability of such a proposition becomes immediately apparent when it is recognized that this rationale would make every governmental exaction the material of a 'free speech' issue. Even the federal income tax would be suspect. And certainly this source of inhibition is as great if the Integrated Bar wastes its dues on dinners as if it spends them on recommendations to the legislature. Yet I suppose that no one would be willing to contend that every waste of money exacted by some form of compulsion is an abridgment of free speech.
2. 'Establishment' of Political Views.
39
The suggestion that a state-created Integrated Bar amounts to a governmental 'establishment' of political belief is hardly worthy of more serious consideration. Even those who would treat the Fourteenth Amendment as embracing the identical protections afforded by the First would have to recognize the clear distinction in the wording of the First Amendment between the protections of speech and religion, only the latter providing a protection against 'establishment.' And as to the Fourteenth, viewed independently of the First, one can surely agree that a State could not 'create a fund to be used in helping certain political parties or groups favored' by it 'to elect their candidates or promote their controversial causes' (367 U.S. at page 788, 81 S.Ct. at page 1809), any more than could Congress do so, without agreeing that this is in any way analogous to what Wisconsin has done in creating its Integrated Bar, or to what Congress has provided in the Railway Labor Act, considered in the Street case, ante, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141.
40
In establishing the Integrated Bar Wisconsin has, I assume all would agree, shown no interest at all in favoring particular candidates for judicial or legal office or particular types of legislation. Even if Wisconsin had such an interest, the Integrated Bar does not provide a fixed, predictable conduit for governmental encouragement of particular views, for the Bar makes its own decisions on legislative recommendations and appears to take no action at all with regard to candidates. By the same token the weight lent to one side of a controversial issue by the prestige of government is wholly lacking here.
41
In short, it seems to me fanciful in the extreme to find in the limited functions of the Wisconsin State Bar those risks of governmental self-perpetuation that might justify the recognition of a Constitutional protection against the 'establishment' of political beliefs. A contrary conclusion would, it seems to me, as well embrace within its rationale the operations of the Judicial Conference of the United States, and the legislative recommendations of independent agencies such as the Interstate Commerce Commission and the Bureau of the Budget.
3. Development of a 'Guild System.'
42
It is said that the Integrated Bar concept tends towards the development of some sort of a 'guild system.' But there are no requirements of action or inaction connected with the Wisconsin Integrated Bar, as contrasted with any unintegrated bar, except for the requirement of payment of $15 annual dues. I would agree that the requirement of payment of dues could not be made the basis of limiting the profession of law to the comparatively wealthy. Cf. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. Nor, doubtless, could admission to the profession be restricted to relatives of those already admitted. But there is no such 'guild' threat presented in this situation.
43
True, the Wisconsin Bar makes recommendations to the State Supreme Court for regulatory canons of legal ethics, and it may be supposed that the Bar is not forbidden to address the State Legislature for measures regulating in some respects the conduct of lawyers. But neither activity is the kind of direct self-reu lation that was stricken down in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. The Wisconsin Supreme Court has retained all of the traditional powers of a court to supervise the activities of practicing lawyers. It has delegated none of these to the Integrated Bar. As put by the State Supreme Court:
44
'The integrated bar has no power to discipline or to disbar any member. That power has been reserved to and not delegated by this court. The procedure under sec. 256.28, Stats., * * * for filing complaints for discipline or disbarment in this court is unaffected by these rules. Rule 11 and Rule 7 provide an orderly and easy method by which proposals to amend or abrogate the rules of the State Bar may be brought before this court for hearing on petition. Rule 9 provides the rules of professional conduct set forth from time to time in the Canons of the Professional Ethics of the American Bar Association, as supplemented or modified by pronouncement of this court, shall be the standard governing the practice of law in this state. Prior to the adoption of the rules this court has not expressly adopted such Canons of Professional Ethics in toto.
45
'The By-laws of the State Bar provide for the internal workings of the organization and by Rule 11, sec. 2, may be amended or abrogated by resolution adopted by a vote of two-thirds of the members of the board of governors or by the members of the association themselves through the referendum procedure. As a further protection to the minority a petition for review of any change in the by-laws made by the board of governors will be entertained by the court if signed by 25 or more active members.
46
'Independently of the provisions in the rules for invoking our supervisory jurisdiction, this court has inherent power to take remedial action, on a sufficient showing that the activities or policies of the State Bar are not in harmony with the objectives for which integration was ordered or are otherwise contrary to the public interest.' In re Integration of Bar, 5 Wis.2d 618, 624—625, 93 N.W.2d 601, 604.
47
Moreover, it is by no means clear to me in what part of the Federal Constitution we are to find the prohibition of state-authorized self-regulation of and by an economic group that the Schechter case found in Article I as respects the Federal Government. Is state-authorized self-regulation of lawyers to be the occasion for judicial enforcement of Art. IV, § 4, which provides that 'The United States shall guarantee to every state in this union a Republican form of government * * *'? Cf. Luther v. Borden, 7 How. 1, 12 L.Ed. 581; Pacific States Tel. & Tel. Co. v. State of Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377.
4. 'Drowning Out' the Voice of Dissent.
48
This objection can be stated in either of two ways. First: The requirement of dues payments to be spent to further views to which the payor is opposed tends to increase the volume of the arguments he opposes and thereby to drown out his own voice in opposition, in violation of his Constitutional right to be heard. Second: The United States Constitution creates a scheme of federal and state governments each of which is to be elected on a one-man-one-vote basis and on a one-man-one-political-voice basis. Of course several persons may voluntarily cumulate their political voices, but no governmental force can require a single individual to contribute money to support views to be adopted by a democratically organized group even if the individual is also free to say what he pleases separately.
49
It seems to me these arguments have little force. In the first place, their supposition is that the voice of a dissenter is less effective if he speaks it first in an attempt to influence the action of a democratically organized group and then, if necessary, in dissent to the recommendations of that group. This is not at all convincing. The dissenter is not being made to contribute funds to the furtherance of views he opposes but § rather being made to contribute funds to a group expenditure about which he will have something to say. To the extent that his voice of dissent can convince his lawyer associates, it will later be heard by the State Legislature with a magnified voice. In short, I think it begs the question to approach the Constitutional issue with the assumption that the majority of the Bar has a permanently formulated position which the dissenting dues payor is being required to support, thus increasing the difficulty of effective opposition to it.
50
Moreover, I do not think it can be said with any assurance that being required to contribute to the dispersion of views one opposes has a substantial limiting effect on one's right to speak and be heard. Certainly these rights would be limited if state action substantially reduced one's ability to reach his audience. But are these rights substantially affected by increasing the opposition's ability to reach the same audience? I can conceive of instances involving limited facilities, such as television time, which may go to the highest bidder, wherein increasing the resources of the opposition may tend to reduce a dissident's access to his audience. But before the Constitution comes into play, there should surely be some showing of a relationship between required financial support of the opposition and reduced ability to communicate, a showing I think hardly possible in the case of the legislative recommendations of the Wisconsin Bar. And, aside from the considerations of freedom from compelled affirmations of belief to be discussed later, I can find little basis for a right not to have one's opposition heard.
51
Beyond all this, the argument under discussion is contradicted in the everyday operation of our society. Of course it is disagreeable to see a group, to which one has been required to contribute, decide to spend its money for purposes the contributor opposes. But the Constitution does not protect against the mere play of personal emotions. We recognized in Hanson that an employee can be required to contribute to the propagation of personally repugnant views on working conditions or retirement benefits that are expressed on union picket signs or in union handbills. A federal taxpayer obtains no refund if he is offended by what is put out by the United States Information Agency. Such examples could be multiplied.
52
For me, this 'drowning out' argument falls apart upon analysis.
5. 'Compelled Affirmation' of Belief.
53
It is argued that the requirement of Bar dues payments which may be spent for legislative recommendations which the payor opposes amounts to a compelled affirmation of belief of the sort this Court struck down in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. While I agree that the rationale of Barnette is relevant, I do not think that it is in any sense controlling in the present case.
54
Mr. Justice Jackson, writing for the Court in Barnette, did not view the issue as turning merely 'on one's possession of particular religious views or the sincerity with which they are held.' 319 U.S. at page 634, 63 S.Ct. at page 1183. The holding of Barnette was that, no matter how strong or weak such beliefs might be, the Legislature of West Virginia was not free to require as concrete and intimate an expression of belief in any cause as that involved in a compulsory pledge of allegiance. It is in this light that one must assess the contention that, 'Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against' (367 U.S. 788, 81 S.Ct. 1809). One could as well say that the same more difference in degree distinguishes the Barnette flag salute situation from a taxpayer's objections to the views a government agency presents, at public expense, to Congress. What seems to me obvious is the large diffr ence in degree between, on the one hand, being compelled to raise one's hand and recite a belief as one's own, and, on the other, being compelled to contribute dues to a bar association fund which is to be used in part to promote the expression of views in the name of the organization (not in the name of the dues payor), which views when adopted may turn out to be contrary to the views of the dues payor. I think this is a situation where the difference in degree is so great as to amount to a difference in substance.
55
In Barnette there was a governmental purpose of requiring expression of a view in order to encourage adoption of that view, much the same as when a school teacher requires a student to write a message of self-correction on the blackboard one hundred times. In the present case there is no indication of a governmental purpose to further the expression of any particular view. More than that, the State Bar's purpose of furthering expression of views is unconnected with any desire to induce belief or conviction by the device of forcing a person to identify himself with the expression of such views. True, purpose may not be controlling when the identification is intimate between the person who wishes to remain silent and the beliefs foisted upon him. But no such situation exists here where the connection between the payment of an individual's dues and the views to which he objects is factually so remote. Surely the Wisconsin Supreme Court is right when it says that petitioner can be expected to realize that 'everyone understands or should understand' that the views expressed are those 'of the State Bar as an entity separate and distinct from each individual.' 5 Wis.2d at page 623, 93 N.W.2d at page 603.
56
Indeed, I think the extreme difficulty the Court encounters in the Street case (ante, 367 U.S. 740, 81 S.Ct. 1764) in finding a mechanism for reimbursing dissident union members for their share of 'political' expenditures is wholly occasioned by, and is indicative of, the many steps of changed possession, ownership, and control of dues receipts and the multiple stages of decision making which separate the dues payor from the political expenditure of some part of his dues. I think these many steps and stages reflect as well upon whether there is an identification of dues payor and expenditure so intimate as to amount to a 'compelled affirmation.' Surely if this Court in Street can only with great difficulty—if at all-identify the contributions of particular union members with the union's political expenditures, we should pause before assuming that particular Bar members can sensibly hear their own voices when the State Bar speaks as an organization.
57
Mr. Justice Cardozo, writing for himself, Mr. Justice Brandeis, and Mr. Justice Stone in Hamilton v. Regents, 293 U.S. 245, 265, 55 S.Ct. 197, 205, 79 L.Ed. 343, thought that the remoteness of the connection between a conscientious objection to war and the study of military science was in itself sufficient to make untenable a claim that requiring this study in state universities amounted to a state establishment of religion. These Justices thought the case even clearer when all that was involved was a contribution of money:
58
'Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war * * * or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government.' Hamilton v. Regents, 293 U.S. 245, 268, 55 S.Ct. 197, 206.
59
Nor do I now believe that a state taxpayer could object on Fourteenth Amendment grounds to the use of his money for school textbooks or instruction which he finds intellectually repulsive, nor for the mere purchase of a flag for the school. In the present case appellan is simply required to pay dues into the general funds of the State Bar. I do not think a subsequent decision by the representatives of the majority of the bar members to devote some part of the organization's funds to the furtherance of a legislative proposal so identifies the individual payor of dues with the belief expressed that we are in the Barnette realm of 'asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one * * *.' 319 U.S. at page 634, 63 S.Ct. at page 1183.
60
It seems to me evident that the actual core of appellant's complaint as to 'compelled affirmation' is not the identification with causes to which he objects that might arise from some conceivable tracing of the use of his dues in their support, but is his forced association with the Integrated Bar. That, however, is a bridge which, beyond all doubt and any protestations now made to the contrary, we crossed in the Hanson case. I can see no way to uncross it without overruling Hanson. Certainly it cannot be done by declaring as a rule of law that lawyers feel more strongly about the identification of their names with proposals for law reform than union members feel about the identification of their names with collective bargaining demands declared on the radio, in picket signs, and on handbills.
II.
61
While I think that what has been said might well dispose of this case without more, in that Wisconsin lawyers retain 'full freedom to think their own thoughts, speak their own minds, support their own causes and wholeheartedly fight whatever they are against' (367 U.S. 874, 81 S.Ct. 1854), I shall pass on to consider the state interest involved in the establishment of the Integrated Bar, the other ingredient of adjudication which arises whenever incidental impingement upon such freedoms may fairly be said to draw in question governmental action. See, e.g., Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Konigsberg v. State Bar of California, supra.
62
In this instance it can hardly he doubted that it was Constitutionally permissible for Wisconsin to regard the functions of an Integrated Bar as sufficiently important to justify whatever incursions on these individual freedoms may be thought to arise from the operations of the organization. The Wisconsin Supreme Court has described the fields of the State Bar's legislative activities and has asserted its readiness to restrict legislative recommendations to those fields:
63
'This court takes judicial notice of the activities of the State Bar in the legislative field since its creation by this court in 1956. In every instance the legislative measures advocated or opposed have dealt with the administration of justice, court reform, and legal practice. Neither the above-quoted bylaws nor the stated purposes set forth in section 2 of Rule 1 for which the bar was integrated would permit the State Bar to be engaged in legislative activities unrelated to these three subjects. * * * However, as we pointed out in our opinion in the 1958 In re Integration of the Bar Case this court will exercise its inherent power to take remedial action should the State Bar engage in an activity not authorized by the rules and by-laws and not in keeping with the stated objectives for which it was created. If the lawyers of the state wish by group action to engage in legislative activities not so authorized they will have to do so within the framework of some voluntary association, and not the State Bar.' 10 Wis.2d 230, 239—240, 102 N.W.2d 404, 409—410.
64
Further, the same court has declared its belief that the lawyers of the State possess an expertise useful to the public interest within these fields:
65
'We are of the opinion that the public welfare will be promoted by securing and publicizing the composite judgment of the members of the bar of the state on measures directly affecting the administration of justice and the practice of law. The general publc and the legislature are entitled to know how the profession as a whole stands on such type of proposed legislation. This is a function an integrated bar, which is as democratically governed and administered as the State Bar, can perform such more effectively than can a voluntary bar association.' Ibid.
66
I do not think that the State Court's view in this respect can be considered in any way unreasonable.
67
'(T)he composite judgment of the members of the bar of the state on measures directly affecting the administration of justice and the practice of law' may well be as helpful and informative to a state legislature as the work of individual legal scholars and of such organizations as the American Law Institute, for example, is to state and federal courts. State and federal courts are, of course, indifferent to the personal beliefs and predilections of any of such groups. The function such groups serve is a rationalizing one and their power flows from and is limited to their ability to convince by arguments from generally agreed upon premises. They are exercising the techniques and knowledge which lawyers are trained to possess in the task of solving problems with which the legal profession is most familiar. The numberless judicial citations to their work is proof enough of their usefulness in the judicial decision-making process.3
68
Legislatures too have found that they can benefit from a legal 'expert's effort to improve the law in technical and non-controversial areas.' Dulles v. Johnson, 2 Cir., 273 F.2d 362, 367. In the words of the Executive Secretary of the New York Law Revision Commission, there are areas in which 'lawyers as lawyers have more to offer, to solve a given question, than other skilled persons or groups.' 40 Cornell L.Q. 641, 644. See also Cardozo, A Ministry of Justice, 35 Harv.L.Rev. 113. The Acts recommended by the Commissioners on Uniform State Laws have been adopted on over 1,300 occasions by the legislatures of the fifty States, Puerto Rico, and the District of Columbia. Handbook of the National Conference of Commissioners on Uniform State Laws (1960), at p. 207. There is no way of counting the number of occasions on which state legislatures have utilized the assistance of legal advisory groups. Some indication may be obtained by noting that thirty-one jurisdictions have permanent legislative service agencies which recommend 'substantive' legislative programs and forty-two jurisdictions utilize such permanent agencies in recommending statutory revision.4
69
In this light I can only regard as entirely gratuitous a contention that there is anything less than a most substantial state interest in Wisconsin having the views of the members of its Bar 'on measures directly affecting the administration of justice and the practice of law.' Nor can I take seriously a suggestion that the lawyers of Wisconsin are merely being polled on matters of their own personal belief or predilection, any more than Congress had in mind such a poll when it made it the duty of federal circuit judges summoned to attend the Judicial Conference of the United States 'to advise * * * as to any matters in respect of which the administration of justice in the courts of the United States may be improved.' 42 Stat. 837, 838 (Now 28 U.S.C.A. § 331).
III.
70
Beyond this conjunction of a highly significant state need and the chimerical nature of the claims of abridgment of individual freedom, there is still a further approach to the entire problem that combines both of these aspects and reinforces my belief in the Constitutionality of the Integrated Bar.
71
I had supposed it beyond doubt that a state legislature could set up a staff or commission to recommend changes in the more or less technical areas of the lawi nto which no well-advised laymen would venture without the assistance of counsel. A state legislature could certainly appoint a commission to make recommendations to it on the desirability of passing or modifying any of the countless uniform laws dealing with all kinds of legal subjects, running all the way from the Uniform Commercial Code to the Uniform Simultaneous Death Law.5 It seems no less clear to me that a reasonable license tax can be imposed on the profession of being a lawyer, doctor, dentist, etc. See Royall v. State of Virginia, 116 U.S. 572, 6 S.Ct. 510, 29 L.Ed. 735. In these circumstances, wherein lies the unconstitutionality of what Wisconsin has done? Does the Constitution forbid the payment of some part of the Constitutional license fee directly to the equally Constitutional state law revision commission? Or is it that such a commission cannot be chosen by a majority vote of all the members of the state bar? Or could it be that the Federal Constitution requires a separation of state powers according to which a state legislature can tax and set up commissions but a state judiciary cannot do these things?
72
I end as I began. It is exceedingly regrettable that such specious contentions as appellant makes in this case should have resulted in putting the Integrated Bar under this cloud of partial unconstitutionality.
73
Mr. Justice WHITTAKER, concurring in result.
74
Believing that the State's requirement that a lawyer pay to its designee an annual fee of $15 as a condition of its grant, or of continuing its grant, to him of the special privilege (which is what it is) of practicing law in the State—which is really all that is involved here—does not violate any provision of the United States Constitution, I concur in the judgment.
75
Mr. Justice BLACK, dissenting.
76
I do not believe that either the bench, the bar or the litigants will know what has been decided in this case—certainly I do not. Two members of the Court, saying that 'the Constitutional issue is inescapably before us,' vote to affirm the holding of the Wisconsin Supreme Court that a State can, without violating the Federal Constitution, compel lawyers over their protest to pay dues to be used in part for the support of legislation and causes they detest. Another member, apparently agreeing that the constitutional question is properly here, votes to affirm the holding of the Wisconsin Supreme Court because he believes that a State may constitutionally require a lawyer to pay a fee to its 'designee' as a condition to granting him the 'special privilege' of practicing law, even though that 'designee,' over the lawyer's protest, uses part of the fee to support causes the lawyer detests. Two other members of the Court vote to reverse the judgment of the Wisconsin court on the ground that the constitutional question is properly here and the powers conferred on the Wisconsin State Bar by the laws of that State violate the First and Fourteenth Amendments. Finally, four members of the Court vote to affirm on the ground that the constitutional question is actually not here for decision at all. Thus the only proposition in this case for which there is a majority is that the constitutional question is properly here, and the five members of the Court who make up that majority express their views on this constitutional question. Yet a minority of four refuses to pass on the question and it is therefore left completely up in the air—the Court decides nothing. If ever there were two cases that should be set over for reargument in order for the Court to decide—or at least to make an orderly attempt to decide—the basic constitutional question involved in both of them, it is this case and the companion case of International Association of Machinists v. Street.1 In this state of affairs, I find it nc essary to set out my views on the questions which I think are properly presented and argued by the parties.
77
In my judgment, this Court cannot properly avoid decision of the single, sharply defined constitutional issue which this case presents. The appellant filed a complaint in a Wisconsin Circuit Court, charging that he is being compelled by the State of Wisconsin, as a prerequisite to maintaining his status as a lawyer in good standing, to be a member of an association known as the State Bar of Wisconsin and to pay dues to that association; that he has paid these dues only under protest; that the State Bar of Wisconsin is using his money along with the moneys it has collected from other Wisconsin lawyers to engage in activities of a political and propagandistic nature in favor of objectives to which he is opposed and against objectives which he favors; and that, as a consequence of this compelled financial support of political views to which he is personally antagonistic, he is being deprived of rights guaranteed to him by the First and Fourteenth Amendments of the Federal Constitution. Upon demurrer to this complaint, the Circuit Court held that it must be dismissed without leave to amend because, in the opinion of that court, 'it would be impossible to frame a complaint so as to state facts sufficient to constitute a cause of action against either the State Bar of Wisconsin or the defendant Donohue.'2
78
On appeal, the Supreme Court of Wisconsin, relying upon its powers of judicial notice, found as a fact that the State Bar does expend some of the moneys it collects as dues to further and oppose legislation3 and that court also accepted, at its full face value, the allegation of the complaint that many of these expenditures furthered views directly contrary to those held by the appellant.4 The Wisconsin Supreme Court nevertheless affirmed the judgment of the trial court on the ground that the public interest in having 'public expression of the views of a majority of the lawyers of the state, with respect to legislation affecting the administration of justice and the practice of law * * * far outweighs the slight inconvenience to,' and hence any abridgment of the constitutional rights of, those who disagree with the views advocated by the State Bar.5
79
The plurality decision to affirm the judgment of the Wisconsin courts on the ground that the issue in the case is not 'shaped * * * as leanly and as sharply as judicial judgment upon an exercise of * * * (state) power requires' is, in my judgment, wrong on at least two grounds. First of all, it completely denies the appellant an opportunity to amend his complaint so as to 'shape' the issue in a manner that would be acceptable to this Court. Appellant's complaint was dismissed by the Wisconsin courts, without giving him a chance to amend it and before he had an opportunity to bring out the facts in the case, solely because those courts believed that it would be impossible for him to allege any facts sufficient to entitle him to relief. The plurality now suggests, by implication, that the Wisconsin courts were wrong on this point and that appellant could possibly make out a case under his complaint. Why then is the case not remanded to the Wisconsin courts in order that the appellant will have at least one opportunity to meet this Court's fastidious pleading demands? The opinions of the Wisconsin courts in this case indicate that the laws of that State—as do the laws in most civilized jurisdictions permit amendments and clarifications of complaints where defects exist in the original complaint which can be cured. And even if Wisconsin law were to the contrary, it is settled by the decisions of this Court that a federal right cannot be defeated merely on the ground that the original complaint contained a curable defect.6 On this point, the judgment of the Court affirming the dismissal of appellant's suit, insofar as that judgment rests upon the plurality opinion, seems to me to be totally without justification, either in reason, in precedent or in justice.7
80
My second ground of disagreement with the plurality opinion is that I think we should consider and decide now the constitutional issue raised in this case. No one has suggested that this is a contrived or hypothetical lawsuit. Indeed, we have it on no less authority than that of the Supreme Court of Wisconsin that the Wisconsin State Bar does in fact use money extracted from this appellant under color of law to engage in activities intended to influence legislation. The appellant has alleged, in a complaint sworn to under oath, that many of these activities are in opposition to the adoption of legislation which he favors. In such a situation, it seems to me to be nothing more than the emptiest formalism to suggest that the case cannot be decided because the appellant failed to alleged, as precisely as four members of this Court think he should, what it is that the Bar does with which he disagrees. And it certainly seems unjust for the appellant to be thrown out of court completely without being given a chance to amend his complaint and for a judgment against him to be affirmed without consideration of the merits of his cause even though that judgment may later be held to constitute a complete bar to assertion of his First Amendment rights. Even if the complaint in this case had been drawn in rigid conformity to the meticulous requirementso f the plurality, we would be presented with nothing but the very same question now before us: Can a State, consistently with the First and Fourteenth Amendments, force a person to support financially the activities of an organization in support of view to which he is opposed? Thus, the best, if not the only, reason I can think of for not resolving that question now is that a decision on the constitutional question in this case would make it impossible for the Court to rely upon the doctrine of avoidance with respect to that same constitutional question to justify its strained interpretation of the Railway Labor Act in the Street case.8
81
On the merits, the question posed in this case is, in my judgment, identical to that posed to but avoided by the Court in the Street case. Thus, the same reasons that led me to conclude that it violates the First Amendment for a union to use dues compelled under a union-shop agreement to advocate views contrary to those advocated by the workers paying the dues under protest lead me to the conclusion that an integrated bar cannot take the money of protesting lawyers and use it to support causes they are against. What I have said in the Street case would be enough for me to dispose of the issues in this case were it not for the contention which has been urged by the appellee throughout this case that there are distinguishing features that would justify the affirmance of this case even if the statute in the Street case were struck down as unconstitutional.
82
The appellee's contention in this respect rests upon two different arguments. The first of these is that the use of compelled dues by an integrated bar to further legislative ends contrary to the wishes of some of its members can be upheld under the so-called 'balancing test,' which permits abridgment of First Amendment rights so long as that abridgment furthers some legitimate purpose of the State.9 Under this theory, the appellee contends, abridgments of speech 'incidental' to an integrated bar must be upheld because the integrated bar performs many valuable services for the public. As pointed out above, the Wisconsin Supreme Court embraced this theory in express terms. And the concurring opinion of Mr. Justice HARLAN, though not purporting to distinguish the Street case, also adopts the case-by-case 'balancing' approach under which such a distinction as, indeed, any desired distinction is possible.
83
The 'balancing' argument here is identical to that which has recently produced a long line of liberty-stifling decisions in the name of 'self-preservation.'10 The interest of the State in having 'public expression of the views of a majority of the lawyers' by compelling dissenters to pay money against their will to advocate views they detest is magnified to the point where it assumes overpowering proportions and appears to become almost as necessary a part of the fabric of our society as the need for 'self-preservation.' On the other side of the 'scales,' the interest of lawyers in being free from such state compulsion is first fragmentized into abstract, imaginary parts, then minimized part by part almost to the point of extinction, and finally characterizd as being of a purely 'chimerical nature.' As is too often the case, when the cherished freedoms of the First Amendment emerge from this process, they are too weightless to have any substantial effect upon the constitutional scales and must therefore be sacrificed in order not to disturb what are conceived to be the more important interests of society.
84
I cannot agree that a contention arising from the abridgment of First Amendment freedoms which results from compelled support of detested views can properly be characterized as of a 'chimerical nature' or, in the words of the Wisconsin Supreme Court, as involving nothing more than a 'slight inconvenience.'11 Quite the contrary, I can think of few plainer, more direct abridgments of the freedoms of the First Amendment than to compel persons to support candidates, parties, ideologies or causes that they are against. And, as stated many times before, I do not subscribe to the theory that abridgments of First Amendment freedoms can ever be permitted on a 'balancing' basis.12 I reiterate my belief that the unequivocal language of the First Amendment was intended to mean and does mean that the Framers of the Bill of Rights did all of the 'balancing' that was to be done in this area. It is my firm belief that, in the long run, the continued existence of liberty in this country depends upon the abandonment of the constitutional doctrine that permits this Court to reweigh the values weighed by the Framers and thus to weaken the protections of the Bill of Rights. This case reaffirms that belief for it shows that the balancing test cannot be and will not be contained to apply only to those 'hard' cases which at least some members of this Court have regarded as involving the question of the power of this country to preserve itself. For I assume that no one would argue that the power at stake here is necessary to that end.
85
Moreover, if I felt that I had the power to reweigh the 'competing' values involved, I would have no difficulty reaching the conclusion that the loss inflicted upon our free way of life by invasion of First Amendment freedoms brought about by the powers conferred upon the Wisconsin integrated bar far outweighs any state interest served by the exercise of those powers by that association. At stake here is the interest of the individual lawyers of Wisconsin in having full freedom to think their own thoughts, speak their own minds, support their own causes and wholeheartedly fight whatever they are against, as well as the interest of the people of Wisconsin and, to a lesser extent, the people of the entire country in maintaining the political independence of Wisconsi lawyers.13 How is it possible that such formidable interests so vital to our free way of life can be said to be outweighed by any interest—much less the wholly imaginary interest urged here by the State which would have us believe that it will never know what its lawyers think about certain political questions if it cannot compel them to pay their money to support views they abhor? Certainly, I feel entirely confident in saying that the Framers of the First Amendment would never have struck the balance against freedom on the basis of such a demonstrably specious expediency.
86
In saying all this, I do not mean to suggest that the Wisconsin State Bar does not provide many useful and entirely lawful services. Quite the contrary, the record indicates that this integrated bar association, like other bar associations both integrated and voluntary, does provide such services. But I think it clear that these aspects of the Wisconsin State Bar are quite beside the point so far as this case is concerned. For a State can certainly insure that the members of its bar will provide any useful and proper services it desires without creating an association with power to compel members of the bar to pay money to support views to which they are opposed or to fight views they favor. Thus, the power of a bar association to advocate legislation at the expense of those who oppose such legislation is wholly separable from any legitimate function of an involuntary bar association and, therefore, even for those who subscribe to the balancing test, there is nothing to balance against this invasion of constitutionally protected rights.
87
The second ground upon which the appellee would have us distinguish compelled support of hated views as practiced by an integrated bar from compelled support of such views as practiced by the unions involved in the Street case is that lawyers are somehow different from other people. This argument, though phrased in various ways, amounts to nothing more than the contention that the practice of law is a high office in our society which is conferred by the State as a privilege and that the State can, in return for this privilege, impose obligations upon lawyers that it could not impose upon those not given 'so high a privilege.' Were it not for this Court's recent decision in Cohen v. Hurley,14 I would regard this contention as utterly frivolous. But, it is true that the Court did hold in the Cohen case that lawyers could be treated differently from other people, at least insofar as a constitutional privilege against self-incrimination is concerned. As I pointed out in my dissenting opinion in that case, it is a short step from that position to the position now urged in the concurring opinion of Mr. Justice WHITTAKER—that lawyers must also give up their constitutional rights under the First Amendment in return for the 'privilege' that the State has conferred upon them.15
88
I do not believe that the practice of law is a 'privilege' which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government. What I said in the Cohen case is, in my judgment, equally applicable here:
89
'* * * (O)ne 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 weilds 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.'16
90
As I see it, the single, sharply defined constitutional issue presented in this case does not raise a difficult problem. This appellant is not denying the power of the State of Wisconsin to provide that its bar shall engage in non-political and non-controversial activities or even the power of the State to provide that all lawyers shall pay a fee to support such activities. What he does argue, and properly I think, is that the State cannot compel him to pay his money to further the views of a majority or any other controlling percentage of the Wisconsin State Bar when that controlling group is trying to pass laws or advance political causes that he is against. If the 'privilege' of being a lawyer renders that argument unsound, it is certainly one of the more burdensome privileges Government can confer upon one of its citizens. And lawyers might be well advised to reconsider the wisdom of encouraging the use of a slogan which, though high-sounding and noble in its outward appearance, apparently imposes heavy burdens upon their First Amendment freedoms.
91
I would reverse this case and direct the Supreme Court of Wisconsin to require refund of the dues exacted under protest from the appellant in order to permit the Wisconsin State Bar to advocate measures he is against and to oppose measures he favors. I think it plain that lawyers have at least as much protection from such compulsion under the Constitution as the Court is holding railroad workers have under the Railway Labor Act.
92
Mr. Justice DOUGLAS, dissenting.
93
The question in the present case concerns the power of a State to compel lawyers to belong to a statewide bar association, the organization commonly referred to in this country as the 'integrated bar.' There can be no doubt that lawyers, like doctors and dentists, can be required to pass examinations that test their character and their fitness to practice the profession. No question of that nature is presented. There is also no doubt that a State for cause shown can deprive a lawyer of his license. No question of that kind is involved in the present case.1 The sole question is the extent of the power of a State over a lawyer who rebels at becoming a member of the integrated bar and paying dues to support activities that are offensive to him. Thus the First Amendment, made applicable to the States by the Fourteenth, is brought into play. And for the reasons stated by Mr. Justice BLACK, I think all issues in the case are ripe for decision.
94
If the State can compel all lawyers to join a guild, I see no reason why it cannot make the same requirement of doctors, dentists, and nurses. They too have responsibilities to the public; and they also have interests beyond making a living. The groups whose activities are or may be deemed affected with a public interest are indeed numerous. Teachers are an obvious example. Insurance agents, brokers, and pharmacists have long been under licensing requirements or supervisory regimes. As the interdependency of each person on the other increases with the complexities of modern society, the circle of people performing vital services increases. Precedents once established often gain momentum by the force of their existence. Doctrine has a habit of following the path of inexorable logic.
95
We established no such precedent in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112. We dealt there only with a problem in collective bargaining, viz., is it beyond legislative competence to require all who benefit from the process of collective bargaining and enjoy its fruits to contribute to its costs? We held that the evil of those who are 'free riders' may be so disruptive of labor relations and therefore so fraught with danger to the movement of commerce that Congress has the power to permit a union-shop agreement that exacts from each beneficiary his share of the cost of getting increased wages and improved working conditions. The power of a State to manage its internal affairs by requiring a union-shop agreement would seem to be as great.
96
In the Hanson case we said, to be sure, that if a lawyer could be required to join an integrated bar, an employee could be compelled to join a union shop. But on reflection the analogy fails.
97
Of course any group purports to serve a group cause. A medical association that fights socialized medicine protects the fees of the profession. Yet not even an immediate cause of that character is served by the integrated bar. Its contribution is in policing the members of the legal profession and in promoting what the majority of the Bar thinks is desirable legislation.
98
The Supreme Court of Wisconsin said that the integrated bar, unlike a voluntary bar association, was confined in its legislative activities. Though the Wisconsin Bar was active in the legislative field, it was restricted to administration of justice, court reform, and legal practice. The court however added:
99
'The plaintiff complains that certain proposed legislation, upon which the State Bar has taken a stand, embody changes in substantive law, and points to the recently enacted Family Code. Among other things, such measure made many changes in divorce procedure, and, therefore, legal practice. We do not deem that the State Bar should be compelled to refrain from taking a stand on a measure which does substantially deal with legal practice and the administration of justice merely because it also makes some changes in substantive law.' 10 Wis.2d 230, 239, 102 N.W.2d 404, 409.
100
It is difficult for me to see how the State can compel even that degree of subservience of the individual to the group.
101
It is true that one of the purposes of the State Bar Association is 'to safeguard the proper professional interests of the members of the bar.' State Bar of Wisconsin, Rule 1, § 2, W.S.A. ch. 256 Appendix. In this connection, the association has been active in exploiting the monopoly position given by the licensed character of the profession. Thus, the Bar has compiled and published a schedule of recommended minimum fees. See Wis.Bar Bull., Aug. 1960, p. 40. Along the same line, the Committee on Unauthorized Practice of the Law, along with a Committee on Inter-professional and Business Relations, has been set up to polie activities by nonprofessionals within 'the proper scope of the practice of law.' State Bar of Wisconsin, By-Laws, Art. IV, §§ 8, 11.
102
Yet this is a far cry from the history which stood behind the decision of Congress to foster the well-established institution of collective bargaining as one of the means of preserving industrial peace. That history is partially crystallized in the language of the Wagner and Taft-Hartley Acts: 'Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce * * * by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.' National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 137, 29 U.S.C. § 151, 29 U.S.C.A. § 151. It was with this history in mind that we spoke when we said that 'One would have to be blind to history to assert that trade unionism did not enhance and strengthen the right to work.' Railway Employes' Dept. v. Hanson, supra, 351 U.S. at page 235, 76 S.Ct. at page 719.
103
Nor can the present association be defended on grounds that it renders only public services.
104
If we had here a law which required lawyers to contribute to a fund out of which clients would be paid in case attorneys turned out to be embezzlers,2 the present objection might not be relevant. in that case, one risk of the profession would be distributed among all members of the group. The fact that a dissident member did not feel he had within him the seeds of an embezzler might not bar a levy on the whole profession for one sad but notorious risk of the profession. We would also have a different case if lawyers were assessed to raise money to finance the defense of indigents. Cf. In re Florida Bar, Fla., 62 So.2d 20, 24. That would be an imposition of a duty on the calling which partook of service to the public. Here the objection strikes deeper. An attorney objects to a forced association with a group that demands his money for the promotion of causes with which he disagrees, from which he obtains no gain, and which is not part and parcel of service owing litigants or courts.
105
The right of association is an important incident of First Amendment rights. The right to belong—or not to belong—is deep in the American tradition. Joining is one method of expression. This freedom of association is not an absolute. For as I have noted in my opinion in International Assn. of Machinists v. Street, ante, 367 U.S. at page 775, 81 S.Ct. at page 1803, decided this day, the necessities of life put us into relations with others that may be undesirable or even abhorrent, if individual standards were to obtain. Yet if this right is to be curtailed by law, if the individual is to be compelled to associate with others in a common cause, then I think exceptional circumstances should be shown. I would treat laws of this character like any that touch on First Amendment rights. Congestion of traffic, street fights, riots and such may justify curtailment of opportunities or occasions to speak freely. Cf. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. But when those laws are sustained, we require them to be 'narrowly drawn' (Cantwell v. State of Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 84 L.Ed. 1213) so as to be confined to the precise evil within the competence of the legislature. See Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Louisiana ex rel. Gremillion . N.A.A.C.P., 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301. There is here no evil shown. It has the mark of 'a lawyer class or caste'—the system of 'a self-governing and self-disciplining bar' such as England has.3 The pattern of this legislation is regimentation. The inroads of an integrated bar on the liberty and freedom of lawyers to espouse such causes as they choose was emphasized by William D. Guthrie4 of the New York Bar:5
106
'The idea seems to be, contrary to all human experience, that if power be vested in this at present unknown and untried as well as indifferent outside body, holding themselves aloof from their profession, they will somehow become inspired with a high professional sentiment or sense of duty and cooperation and will unselfishly exercise their majority power for the good of their profession and the public, that they can be trusted to choose as their officers and leaders lawyers of the type who are now leaders, that the responsibility of power will necessarily sober and elevate their minds, and finally that democracy calls for the rule of the majority.
107
'Thus, the traditions and ethics of our great profession would be left to the mercy of mere numbers officially authorized to speak for us! This would be adopting all the vices of democracy without the reasonable hope in common sense of securing any of its virtues. It would be forcing the democratic dogma of mass or majority rule to a dangerous and pernicious extreme.
108
'Although in political democrary the rule of the majority is necessary, the American system of democracy is based upon the recognition of the imperative necessity of limitations upon the will of the majority. In the proposed compulsory or involuntary incorporation of the bar, there would be no limitation whatever, and the best sentiments and traditions of the profession, of the public-spirited and highminded lawyers who are now active in the voluntary bar associations of the state, could be wholly and wantonly disregarded and overruled.'6
109
This regimentation appears in humble form today. Yet we know that the Bar and Bench do not move to a single 'nonpartisan' objective. The obvious fact that they are not so motivated is plain from Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156, which we decided only the other day. Once we approve this measure, we sanction a device where men and women in almost any profession or calling can be at least partially regimented behind causes which they oppose. I look on the Hanson case as a narrow exception to be closely confined. Unless we so treat it, we practically give carte blanche to any legislature to put at least professional people into goose-stepping brigades.7 Those brigades are not compatible with the First Amendment. While the legislature has few limits where strictly social legislation is concerned (Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519), the First Amendment applies strictures designed to keep our society from becoming moulded into patterns of conformity which satisfy the majority.
1
He also demurred on grounds that the Circuit Court had no jurisdiction of the subject matter because exclusive jurisdiction was vested in the Supreme Court and that there was a defect of parties because the State Bar was not made a defendant.
2
We also consider the case on this expanded record. Appellant raises no objection, and indeed urges us to do so.
3
The court's action was in response to a petition for 'integration * * * in the manner described' in Wis.Rev.Stats. § 256.31. Wis.Bar Bull., Apr. 1956, p. 21. The resolution of the House of Governors of the Wisconsin Bar Association leading to the filing of the petition referred to 'integration * * * pursuant to the provisions of Section 256.31 of the Wisconsin Statutes.' Id., p. 52. In many other States integration was initially accomplished either entirely by the legislature or by a combination of legislative and judicial action. See N.D.Laws 1921, c. 25; Ala.Laws 1923, No. 133; Idaho Laws 1923, c. 211; N.M.Laws 1925, c. 100; Cal.Stat.1927, c. 34; Nev.Stat.1928, c. 13; Okla.Laws 1929, c. 264; Utah Laws 1931, c. 48; S.D.Laws 1931, c.8 4; Ariz.Laws 1933, c. 66; Wash.Laws 1933, c. 94; N.C.Laws 1933, c. 210; La.Acts 1934, 2d Extra Sess., No. 10; Ky.Acts 1934, c. 3; Ore.Laws 1935, c. 28; Mich.Acts 1935, No. 58; Va.Acts 1938, c. 410; Tex.Gen.Laws 1939, p. 64; W.Va.Acts 1945, c. 44; Alaska Laws 1955, c. 196.
4
Appellant's notice of appeal presents the following question for our review:
'Do the orders and rules of the Supreme Court of the State of Wisconsin * * * and the rules and by-laws which were promulgated thereby deprive the appellant * * * of his rights of freedom of association, assembly, speech, press, conscience and thought, or of his liberty or property without due process of law or deny to him equal protection of the law or otherwise deprive him of rights under the Fourteenth Amendment of the Constitution of the United States by compelling him, as a condition to his right to continue to practice law in the State of Wisconsin, to be a member of and financially support an association of attorneys known as the State Bar of Wisconsin, which association * * * among other things, uses its property, funds and employees for the purpose of influencing a broad range of legislation and public opinion; and, therefore, are said orders, rules and by-laws, insofar as they coerce h e appellant to be a member of and support said association, invalid on the ground that they are repugnant to the Constitution of the United States?'
5
The rules limit the maximum permissible dues to $20 a year.
6
A member suspended for nonpayment of dues may secure automatic reinstatement, so long as his dues are not in arrearage for three or more years, by making full payment of the amount and paying an additional $5 as a penalty. No other condition on acquiring or retaining membership is imposed by the rules or bylaws. Although the State Bar participates in the investigation of complaints of misconduct, see 367 U.S. at pages 829—832, 81 S.Ct. at pages 1830—1832, final power to disbar or otherwise discipline any member resides in the Supreme Court.
The rules also make the canons of ethics of the American Bar Association, as modified or supplemented by the Supreme Court of Wisconsin, 'the standards governing the practice of law in this state.' But appellant makes no claim that the State lacks power to impose on him a duty to abide by these canons.
7
The committees and their assigned functions are as follows:
'Legal education and bar admissions.—This committee shall make continuing studies of the curricula and teaching methods employed in law schools, and of standards and methods employed in determining the qualifications of applicants for admission to the bar; and whenever requested by the State Bar commissioners shall assist in the investigation of the qualifications of persons seeking admission to the bar.
'Post-graduate education.—This committee shall formulate and promote programs designed to afford to the members of the State Bar suitable opportunities for acquiring additional professional knowledge, training, and skill, through publications, lectures, and discussions at regional meetings of association members and law institutes, and through correspondence course study.
'Administration of justice.—This committee shall study the organization and operation of the Wisconsin judicial system and shall recommend from time to time appropriate changes in practice and procedure for improving the efficiency thereof; and in that connection shall examine all legislative proposals for changes in the judicial system.
'Judicial selection.—This committee shall study and collect information pertaining to judicial selection, tenure, and compensation, includin retirement pensions, and shall report from time to time to the association with respect thereto,
'Professional ethics.—This committee shall formulate and recommend standards and methods for the effective enforcement of high
standards of ethics and conduct in the practice of law; shall consider the Canons of Ethics of the legal profession and the observance thereof, and shall make recommendations for appropriate amendments thereto. The committee shall have authority to express opinions regarding proper professional conduct, upon written request of any member or officer of the State Bar.
'Public services.—This committee shall prepare and present to the board of governors plans for advancing public acceptance of the objects and purposes of the association; and shall have responsibility for the execution of such plans as are approved by the board of governors. Such plans shall include arrangements for disseminating information of interest to the public in relation to the functions of the departments of government, the judicial system and the bar; and to that end the committee may operate a speakers' bureau and employ the facilities of the public press and other channels of public communications.
'Interprofessional and business relations.—It shall be the duty of this committee to serve as a liaison agency between the legal profession and other professions and groups with whom the bar is in contact in order to interpret to such professions and groups the proper scope of the practice of law.
'Legislation.—This committee shall study all proposals submitted to the Wisconsin legislature or the congress of the United States for changes in the statutes relating to the courts or the practice of law, and shall report thereon to the board of governors; and with the approval of the board of governors may represent the State Bar in supporting or opposing any such proposals.
'Legal aid.—This committee shall promote the establishment and efficient maintenance of legal aid organizations equipped to provide free legal services to those unable to pay for such service; shall study the administration of justice as it affects persons in the low income groups; and shall study and report on methods of making legal service more readily available to persons of moderate means, and shall encourage and assist local bar associations in accomplishing this purpose.
'Unauthorized practice of the law.—This committee shall keep itself and the association informed with respect to the unauthorized
practice of law by laymen and by agencies, and the participation of members of the bar in such activities, and concerning methods for the prevention thereof. The committee shall seek the elimination of such unauthorized practice and participation therein on the part of members of the bar, by such action and methods as may be appropriate for that purpose.
'State Bar Bulletin.—This committee shall assist and advise the officers of the association and the board of governors in matters pertaining to the production and publication of the Wisconsin State Bar Bulletin, the Wisbar Letter, the Supreme Court Calendar Service and such other periodical publications of the State Bar as may be authorized by the board of governors from time to time.
'State Grievance Committee.—This committee shall consist of the chairmen of the district grievance committees, who shall meet at least quarterly and whose duties shall be to exchange information as to problems arising under the grievance procedure, to discuss and adopt uniform procedures and standards under Rule 10 (relating to grievances) and to make recommendations to the Board of Governors for improvements in the procedures under Rule 10 and for other matters consistent with their organization.' Article IV, Sections 2—13, 273 Wis. xxxiii—xxxv; Supplement, Wis.Bar Bull., Aug. 1960, pp. 21—23.
Sections have been created in the areas of corporation and business law, family law, role of house counsel, insurance, negligence and workmen's compensation law, labor relations law, military law, real property, probt e and trust law, taxation, government law, protection of individual rights against misuse of powers of government, patent, trademark and copyright law, and criminal law.
8
The court said: 'We feel * * * that integration of the bar should be tried. The results thereof will be what the bar and the court make of it. If integration does not work, this court can change the rules to meet any situation that arises or it can abandon the plan.' In re Integration of the Bar, 273 Wis. 281, 285, 77 N.W.2d 602, 604. '(The rules and by-laws) cannot be taken as the last word, and * * * experience in operating under them may disclose imperfections and particulars in which they should be changed. The integrated bar itself is an experiment in Wisconsin, and like all new enterprises may be expected to need adaptation to conditions and circumstances not yet clearly foreseen.' 273 Wis. ix.
9
The policy provides:
1. 'The State Bar, through action of its Board of Governors, will initiate legislation only on such matters as it believes to be of general professional interest. ,No legislation will be sponsored unless and until the Board is satisfied that the recommendation represents the consensus and the best composite judgment of the legal profession of this state, and that the proposed legislation is meritorious and in the public interest. The text of all proposed legislation shall be
carefully prepared and considered and the counsel of the experts in the field involved will be sought wherever possible.'
2. Power to make the final determination of the policy of the State Bar toward specific legislative proposals is lodged in the Board of Governors.
3. 'Where it is obvious that the membership of the Bar is of a substantially divided opinion, the Board of Governors shall take no definite position'; but in any such case the Board is empowered to report its vote to the Legislature as a reflection of the diverse views of the members.
4. The Board may delegate its power to take a position on legislative matters to the Committee on Leigslation, the president of the State Bar, or the legislative counsel.
5. Between Board meetings, the Executive Committee may exercise all of the Board's powers with respect to legislation.
6. The Board shall designate a legislative counsel, to be registered as a lobbyist in accordance with Wisconsin law. His task is to manage legislative activities, coordinating the work of sections and committees interested in legislative proposals with the activities of the Board, Executive Committee, and Committee on Legislation; he is also directed to screen all legislative proposals and refer those of special interest to the appropriate section or committee for study and recommendation.
7. The Committee on Legislation is empowered to designate persons to appear before legislative committees and ar ange for their appearance.
8. When a section or committee sponsors legislation with the approval of the Board, section officers or the committee chairman may appear before the legislature in its name, or request the legislative counsel to appear.
9. 'During the session of the Legislature all sections and committees of the State Bar are expected to stand ready to: (a) Participate in explaining the bills recommended or opposed by the State Bar to the committees of the Legislature to whom they are referred; (b) Prepare explanatory material relative to any bill about which
a question has arisen since its introduction; (c) Examine all bills advocated by others that would affect the courts, the judiciary, the legal profession, or the administration of justice in any particular, or that would make any changes in the substantive law, and keep the Board of Governors and the Executive Committee fully informed so that ill-advised bills can be opposed and meritorious bills can be supported. Committees of the Legislature should be encouraged to request the State Bar to study and to report its recommendations concerning all bills of this category.'
10. The State Bar staff is directed to cooperate with all sections, committees, individual members, and local bar associations desiring to have bills drafted for introduction into the legislature.
11. To facilitate widespread study of legislative proposals, the State Bar shall issue a weekly legislative bulletin to officers, members of the Board of Governors and the Executive Committee, section and committee chairmen, presidents and secretaries of all local bar associations, judges, and other persons as directed by the Executive Committee.
12. Local bar associations are encouraged to take such action on legislation as they deem appropriate and forward their recommendations to the State Bar for consideration. Board of Governors Minutes, June 12, 1957.
By resolution in 1959 it was further provided that a committee or section may present its views on legislation without approval of the Board of Governors. But in so doing it must state that the position is that of the group or its officers, not that of the State Bar. Board of Governors Minutes, Feb. 18, 1959.
10
The statewide and regional meetings, the court found, are largely devoted 'to the delivery of papers on technical legal subjects of an instructive nature.' 10 Wis.2d at page 246, 102 N.W.2d at pages 412—413. The sections are particularly active in this regard. As a former president of the State Bar described their role: 'The sections provide a special place where members with interest in particular fields of law may serve on committees and receive assistance and training in such fields. Moreover, the sections provide their own programs at each Annual and Midwinter meeting largely of a very practical and educational nature.' Wis. Bar Bull., Aug. 1958, p. 71. See, e.g., Report of Corporation and Business Law Section, id., June 1960, p. 56; Report of Labor Law Section, id., p. 60. For example, the Taxation Section has sponsored an annual tax institute for practicing lawyers. See Report of Taxation Section, Wis.Bar.Bull., June 1959, pp. 53—54. Many of the papers delivered at such sessions are later given wider circulation to the Bar by publication in the Bar Bulletin. In addition, the State Bar has undertaken the sponsorship of numerous special seminars and symposia, see, e.g., Wis.Bar Bull., Aug. 1960, p. 41. And it has made funds available to the University of Wisconsin Law School to compensate students for assisting in the preparation of materials for post-graduate programs. See Board of Governors Minutes, Apr. 25, 1958; Wis.Bar Bull., Aug. 1958, pp. 69—70.
11
Prior to integration the Board of State Bar Commissioners conducted and paid for the investigation of grievances. Since then the grievance committees have performed most of that work, with a resulting diminution in the financial needs of the bar commissioners. A former president of the State Bar commented on these committees' performance of their functions: 'The result is that a majority of complaints are adjusted or explained to the satisfaction of the complainant, and the State Bar Commissioners are saved considerable time and effort * * *.' Wis.Bar Bull., Aug. 1958, p. 68. See also id., Aug. 1960, p. 41.
12
Revenues from integration enabled the State Bar to employ a lawyer whose principal task is the investigation of complaints of unauthorized practice and the effort to achieve its discontinuance. A number of legal actions to prevent unauthorized practice have been instituted. See, e.g., Wis.Bar Bull., Aug. 1960, p. 45; id., June 1960, pp. 48—50; id., June 1958, pp. 48—49. The Committee on Unauthorized Practice has also worked with the Committee on Interprofessional and Business Relations in conferring with other professional groups to establish demarcation lines between their activities and those of the bar. Thus an agreement was negotiated with the Association of Certified Public Accountants and a joint committee provided to police it. See Board of Goe rnors Minutes, Dec. 9, 1960. The Committee on Interprofessional and Business Relations has also participated in projects for the formulation of agreements with the Association of Real Estate Brokers and the Association of Collection Agencies, and its program includes conferences with other professional groups. See Executive Committee Minutes, July 22, 1960. Legal ethics is another concern of the State Bar. Its Committee on Professional Ethics has given opinion on a number of questions of ethical practice. See, e.g., Wis.Bar Bull., June 1960, pp. 46—49.
13
The number of lawyers in Wisconsin participating in legal aid has steadily increased. The committee reported in 1960 that it would 'continue to vigorously carry on its program of rendering prompt and efficient legal aid services to all those who require the same; to continue to work diligently to the realization of the goal that every county bar association within our State have an effective legal aid bureau or legal aid society as soon as possible; to continue our policy of bringing into our open forum meetings on legal aid, the most outstanding authorities on the subject, to the end that we here in the State of Wisconsin will at all times have the fullest, up-to-date information on every phase of legal aid * * *.' Wis.Bar Bull., June 1960, p. 64. See also id., June 1959, p. 63.
14
The State Bar has also prepared articles on legal subjects for distribution to newspapers throughout the State. It has been concerned with the promotion of the annual Law Day. See, e.g., Wis.Bar Bull., Aug. 1958, p. 67. The Bar Bulletin, in addition to publishing articles on legal subjects, has issued special supplements explaining and annotating new laws and has printed checklists for attorneys suggesting how to proceed with various legal problems. Its avowed aim is to make the Bulletin 'a very practical means for all practicing lawyers to keep posted on the ever-changing requirements in the practice. * * * We believe that one of the great justifications for integration is found in the means of publication and communication from the Bar to the member through these vehicles.' Wis.Bar Bull., June 1960, p. 67.
15
The stated functions of the Special Committee on Economics of the Bar are: '(t)he committee will engage itself in the general study of the economics of the Bar to determine a fair fee schedule from time to time; seek its uniform adoption and recognition throughout the state; study the encroachment of lay agencies on the fields of law; make suggestions for proper office management, and make such recommendations from time to time as it considers proper in the general field.' Wis.Bar Bull., June 1959, p. 58. One of the principal products of such activity has been a recommended schedule of minimum fees for Wisconsin lawyers; this schedule was published and distributed at a cost of over $10,000 to the State Bar. See Wis.Bar Bull., Aug. 1960, p. 40; also id., pp. 10—11. Another project authorized by the Board of Governors is a comprehensive statistical study of the economic status of Wisconsin lawyers. See Board of Governors Minutes, Sept. 23, 1960, Dec. 9, 1960. Other special committees have considered such matters as group insurance for State Bar members and creation of a client security plan to insure against attorneys' defalcations. See, e.g., Wis.Bar Bull., Aug. 1960, p. 41; Board of Governors Minutes, Feb. 18, 1959; Executive Committee Minutes, Sept. 23, 1960.
16
On the subject of integration of the bar in the United States, see generally Glaser, The Organization of the Integrated Bar, The Debate Over the Integrated Bar, and Bibliography on the Integrated Bar (Columbia University Bureau of Applied Social Research). Comprehensive discussions of integration of the Bar in the various States are contained in briefs amici curiae filed with the Court in this case.
17
The Wisconsin Supreme Court originally declined to order integration partly because of misgivings whether possible political activities of the integrated Bar would be consistent with the public interest sought to be served. See In re Integration of the Bar, 249 Wis. 523, 25 N.W.2d 500. It indicated that integration would 'require it to censor the budgets and activities of the bar after integration' and said: 'It requires a very short look at some of the possible activities of the bar to make it clear that this court would have to insist upon scrutinizing every activity for which it is proposed to expend funds derived from dues, and that a series of situations would arise that would be embarrassing to the relations of bench and bar.' 249 Wis. at pages 528, 529—530, 25 N.W.2d at pages 502, 503. These reservations were expressly disclaimed when the court continued integration in 1958, 5 Wis.2d 618, 626—627, 93 N.W.2d 601, 605. The court said: 'The integrated State Bar of Wisconsin is independent and free to conduct its activities within the framework of such rules and by-laws.' Id., 5 Wis.2d at page 626, 93 N.W.2d at page 605. The court reiterated this position in the present case: 'In so far as it confines such activities to those authorized by the rules and by-laws, this court will not interfere or in any manner seek to control or censor the action taken, or to substitute its judgment for that of the membership of the State Bar.' 10 Wis.2d at page 240, 102 N.W.2d at page 410.
1
Alabama, Alaska, Arizona, California, Florida, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Mei co, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wyoming. See note 14, dissenting opinion of MR. JUSTICE FRANKFURTER in International Association of Machinists v. Street, 367 U.S. 808, 81 S.Ct. 1819, ante. Arkansas has a Bar which is integrated only with respect to disciplinary matters. 207 Ark. xxxiv—xxxvii.
2
Among other things, the Integrated Bar of the State of Wisconsin is authorized by the State Supreme Court, acting under its inherent rule-making powers, to publish information relating to 'the practice of law, the science of jurisprudence and law reform, and the relations of the bar to the public.' Rule 1, 273 Wis. xi. Rule 4, § 4, provides for standing committees including, inter alia, Committees on Administration of Justice and on Legislation. 273 Wis. xvi. The function of the former, as set out in Art. IV, § 4, of the by-laws, 273 Wis. xxxiii, is to 'study the organization and operation of the Wisconsin judicial system and * * * recommend from time to time appropriate changes in practice and procedure for improving the efficiency thereof * * *.' The function of the Committee on Legislation is to study and, in certain circumstances, support or oppose 'proposals submitted to the Wisconsin legislature or the congress of the United States for changes in the statutes relating to the courts or the practice of law * * *.' Art. IV, § 9, 273 Wis. xxxiv. The enabling court rules indicate authorization for further study and comment on proposed legislation, for the board of governors is directed to establish sections on corporation and business law; family law; house counsel; insurance, negligence and workmen's compensation law; labor relations law; military law; real property, probate, and trust law; and taxation. 273 Wis. xvii. The plurality opinion of this Court sets out the nature and scope of the activities bearing on prospective legislation actually engaged in by this Integrated Bar. 367 U.S. at pages 835—839, 81 S.Ct. at pages 1834—1835.
3
The nine Restatements of the law alone have been cited well over 27,000 times. 36th Annual Meeting, The American Law Institute, at p. 63.
4
'Permanent Legislative Service Agencies,' published by the Council of State Governments.
5
In thirty-three States the legislature appoints Commissioners on Uniform State Laws. Handbook of the National Conference of Commissioners on Uniform State Laws (1960), at p. 211.
1
367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141.
2
The Circuit Court also found jurisdictional difficulties with appellant's complaint but it expressly declined to rest its decision upon the jurisdictional defects alone.
3
'This court takes judicial notice of the activities of the State Bar in the legislative field since its creation by this court in 1956. In every instance the legislative measures advocated or opposed have dealt with the administration of justice, court reform, and legal practice.' Lathrop v. Donohue, 10 Wis.2d 230, 239, 102 N.W.2d 404, 409. The scope of this finding is shown by the court's further statement in answer to appellant's contention that the State Bar also took positions on strictly substantive legislation: 'We do not deem that the State Bar should be compelled to refrain from taking a stand on a measure which does substantially deal with legal practice and the administration of justice merely because it also makes some changes in substantive law.' Ibid.
4
Thus, the Wisconsin court correctly stated the issue in this case: 'The only challenged interference with his liberty is the exaction of annual dues to the State Bar * * * part of which is used to advocate causes to which he is opposed.' Id., 10 Wis.2d 230, 242, 102 N.W.2d 404, 411.
5
Ibid. The Wisconsin Supreme Court agreed with the Circuit Court that there were jurisdictional difficulties with the suit as it was brought. But the Supreme Court, like the Circuit Court, did not rest its decision on these jurisdictional grounds. Even though it agreed that the Circuit Court did not properly have jurisdiction, it expressly affirmed the judgment of the Circuit Court which, as pointed out b ove, dismissed the complaint without leave to amend on the ground that no amendment would cure the defects in the merits of appellant's case.
6
See, e.g., Brown v. Western R. of Alabama, 338 U.S. 294, especially at page 296, 70 S.Ct. 105, at page 106, 94 L.Ed. 100.
7
The authorities relied upon by the plurality opinion certainly do not support its position. The concurring opinion in United States v. C.I.O., 335 U.S. 106, 124—129, 68 S.Ct. 1349. 1358—1360, 92 L.Ed. 1849, does not suggest that a litigant who fails properly to 'shape' constitutional issues should be thrown out of court completely for his failure. And the decision of the Court in United States v. International Union, U.A.W.—C.I.O., 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 763, plainly cannot be taken to justify such a disposition since that case was remanded for further proceedings.
8
As I have indicated in my dissenting opinion in that case, I also think the Court went to extravagant lengths to avoid the constitutional issue in that case. Ante, 367 U.S. at pages 784 786, 81 S.Ct. at pages 1807—1808. And I think it clear that the Court would have no choice but to meet and decide the constitutional issue in Street if a decision on that issue were made in this case. See id., 367 U.S. at page 785, 81 S.Ct. at page 1808.
9
A complete statement of the arguments underlying the 'balancing test' is set out in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, in which this Court held that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment are outweighed by the power of Congress to regulate interstate commerce.
10
See, e.g., Dennis v. United States, 341 U.S. 494, 509 511, 71 S.Ct. 857, 867—868, 95 L.Ed. 1137; Barenblatt v. United States, 360 U.S. 109, 127—128, 79 S.Ct. 1081, 1093, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399, 411, 81 S.Ct. 567, 574, 5 L.Ed.2d 633.
11
10 Wis.2d at page 242, 102 N.W.2d at page 411.
12
See, e.g., Scales v. United States, 367 U.S. 203, 259, 81 S.Ct. 1469, 1501, 6 L.Ed.2d 782 (dissenting opinion); Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 137, 81 S.Ct. 1357, 1431, 6 L.Ed.2d 625 (dissenting opinion); In re Anastaplo, 366 U.S. 82, 110—112, 81 S.Ct. 978, 993—994, 6 L.Ed.2d 135 (dissenting opinion); Konigsberg v. State Bar of California, 366 U.S. 36, 62—71, 81 S.Ct. 997, 1013, 1017, 6 L.Ed.2d 105 (dissenting opinion); Braden v. United States, 365 U.S. 431, 441 446, 81 S.Ct. 584, 590—593, 5 L.Ed.2d 653 (dissenting opinion); Wilkinson v. United States, 365 U.S. 399, 422—423, 81 S.Ct. 567, 580, 5 L.Ed.2d 633 (dissenting opinion); Uphaus v. Wyman, 364 U.S. 388, 392—393, 81 S.Ct. 153, 159—160, 5 L.Ed.2d 148 (dissenting opinion); Barenblatt v. United States, 360 U.S. 109, 140—144, 79 S.Ct. 1081, 1100—1102, 3 L.Ed.2d 1115 (dissenting opinion); American Communications Ass'n v. Douds, 339 U.S. 382, 445—453, 70 S.Ct. 674, 707—711, 94 L.Ed. 925 (dissenting opinion).
13
Cf. Cohen v. Hurley, 366 U.S. 117, 138—150, 81 S.Ct. 954, 966—972, 6 L.Ed.2d 156 (dissenting opinion); In re Anastaplo, 366 U.S. 82, 114—116, 81 S.Ct. 978, 995—996, 6 L.Ed.2d 135 (dissenting opinion); Konigsberg v. State Bar of California, 366 U.S. 36, 73 74, 77—80, 81 S.Ct. 997, 1019, 1021—1022, 6 L.Ed.2d 105 (dissenting opinion).
14
366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. The decision of the New York Court of Appeals in that case was expressly rested in part upon the notion that the practice of law is a 'special privilege.' See id., 366 U.S. at pages 132—133, 81 S.Ct. at pages 963—964 (dissenting opinion). And I thought then, as I think now, that the decision of this Court upholding the judgment of the New York court placed '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.' Id., 366U .S. at page 135, 81 S.Ct. at page 965 (dissenting opinion).
15
Id., 366 U.S. at pages 142—143, 81 S.Ct. at page 969 (dissenting opinion).
16
Id., 366 U.S. at pages 138—139, 81 S.Ct. at page 966 (dissenting opinion).
1
A self-policing provision whereby lawyers were given the power to investigate and disbar their associates woud raise under most, if not all, state constitutions the type of problem presented in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. See 1 Davis, Administrative Law Treatise, § 2.14.
2
See 84 Rep.Am.Bar Assn., pp. 365—367, 513—515, 604—606 (1959); Voorhees, A Progress Report: The Clients' Security Fund Program, 46 Am.Bar Assn.Jour., 496 (1960); Voorhees, Should The Bar Adopt Client Security Funds?, 28 Jour.Bar Assn.Kan. 5 (1959). As of May 1961, Arizona, Colorado, Connecticut, New Hampshire, New Mexico, Ohio, Pennsylvania, and Washington have such funds.
3
Guthrie, The Proposed Compulsory Incorporation of the Bar, 4 N.Y.L.Rev. 223, 231 (1926).
4
See Swaine, The Cravath Firm (1946), Vol. I, pp. 359, 518.
5
Guthrie, supra, note 3, 234—235.
6
Compare with this the language of the court below in this case: '(I)t promotes the public interest to have public expression of the views of a majority of the lawyers of the state, with respect to legislation affecting the administration of justice and the practice of law, the same to be voiced through their own democratically chosen representatives comprising the board of governors of the (Integrated) State Bar.' 10 Wis.2d 230, 242, 102 N.W.2d 404, 411.
7
A current observer has commented on the results of the regimented Bar in England:
'Britain is moving towards a dangerous dictatorship not only in journals m, wireless, and television, but in finance and law. The immense groups controlling financial operations are becoming more and more interlocked and have an increasing tendency to cover up each other's errors.
'The great firms of solicitors are less and less inclined to offend the powerful financial houses which place the biggest business; and if dishonesty is alleged they all too often refuse 'to act' if this should involve one of the great interests upon which the big and profitable business of our times depends.
'Slowly, dangerously, and without the public fully realising what is happening, a nation of great power bottled up in a tiny geographical area is being brought within the grip of a minority of extremely powerful men whose genius is to deny the smallest pretension to power, but who, in fact, are wholly ruthless in a persistent search for power.
'In this search, although money is vital, they are ready to be Radical in many ways—particularly in the destruction of all rivalry for influence which might spring from a widespread continuity of wealth in the hands of proprietors of family businesses or land.
'To destroy this movement towards Press monopoly and financial 'cover-up,' it will be necessary for individuals still preserved from 'take-over' to support every form of independent journalism and finance. Unhappily, in the field of journalism the smaller groups are so afraid of worse than already threatens, that the tendency is towards surrender. This must be stopped.' The Weekly Review, Feb. 3, 1961, pp. 1, 2.
| 23
|
367 U.S. 643
81 S.Ct. 1684
6 L.Ed.2d 1081
Dollree MAPP, etc., Appellant,v.OHIO.
No. 236.
Argued March 29, 1961.
Decided June 19, 1961.
Rehearing Denied Oct.9 , 1961.
See 82 S.Ct. 23.
Mr. A. L. Kearns, Cleveland, Ohio, for appellant.
Mr. Bernard A. Berkman, Cleveland, Ohio, for American Civil Liberties Union and the Ohio Civil Liberties Union, as amici curiae.
Mrs. ,Gertrude Bauer Mahon, Cleveland, Ohio, for appellee.
Mr. Justice CLARK delivered the opinion of the Court.
1
Appellant stands convicted of knowingly having had in her possession and under her control certain lewd and lascivious books, pictures, and photographs in violation of § 2905.34 of Ohio's Revised Code.1 As officially stated in the syllabus to its opinion, the Supreme Court of Ohio found that her conviction was valid though 'based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of defendant's home * * *.' 170 Ohio St. 427—428, 166 N.E.2d 387, 388.
2
On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that 'a person (was) hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home.' Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.
3
The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened2 and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their definance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the 'warrant' and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been 'belligerent' in resisting their official rescue of the 'warrant' from her person. Running roughshod over appellant, a policeman 'grabbed' her, 'twisted (her) hand,' and she 'yelled (and) pleaded with him' because 'it was hurting.' Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.
4
At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, 'There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home.' 170 Ohio St. at page 430, 166 N.E.2d at page 389. The Ohio Supreme Court believed a 'reasonable argument' could be made that the conviction should be reversed 'because the 'methods' employed to obtain the (evidence) were such as to 'offend 'a sense of justice,'" but the court found determinative the fact that the evidence had not been taken 'from defendant's person by the use of brutal or offensive physical force against defendant.' 170 Ohio St. at page 431, 166 N.E.2d at pages 389—390.
5
The State says that even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial, citing Wolf v. People of State of Colorado, 1949, 338 U.S. 25, at page 33, 69 S.Ct. 1359. at page 1364, 93 L.Ed. 1782, in which this Court did indeed hold 'that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.' On this appeal, of which we have noted probable jurisdiction, 364 U.S. 868, 81 S.Ct. 111, 5 L.Ed.2d 90, it is urged once again that we review that holding.3
I.
6
Seventy-five years ago, in Boyd v. United States, 1886, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, considering the Fourth4 and Fifth Amendments as running 'almost into each other'5 on the facts before it, this Court held that the doctrines of those Amendments
7
'apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property * * *. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation * * * (of those Amendments).'
The Court noted that
8
'constitutional provisions for the security of person and property should be liberally construed. * * * It is the duty of courts to be watchful for the constitutional rights of the citizen, and againt any stealthy encroachments thereon.' At page 635 of 116 U.S., at page 535 of 6 S.Ct.
9
In this jealous regard for maintaining the integrity of individual rights, the Court gave life to Madison's prediction that 'independent tribunals of justice * * * will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' I Annals of Cong. 439 (1789). Concluding, the Court specifically referred to the use of the evidence there seized as 'unconstitutional.' At page 638 of 116 U.S., at page 536 of 6 S.Ct.
10
Less than 30 years after Boyd, this Court, in Weeks v. United States, 1914, 232 U.S. 383, at pages 391—392, 34 S.Ct. 341, at page 344, 58 L.Ed. 652, stated that
11
'the 4th Amendment * * * put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints (and) * * * forever secure(d) the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law * * * and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws.' Specifically dealing with the use of the evidence unconstitutionally seized, the Court concluded:
12
'If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.' At page 393 of 232 U.S., at page 344 of 34 S.Ct.
13
Finally, the Court in that case clearly stated that use of the seized evidence involved 'a denial of the constitutional rights of the accused.' At page 398 of 232 U.S., at page 346 of 34 S.Ct. Thus, in the year 1914, in the Weeks case, this Court 'for the first time' held that 'in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.' Wolf v. People of State of Colorado, supra, 338 U.S. at page 28, 69 S.Ct. at page 1361. This Court has ever since required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required—even if judically implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to 'a form of words.' Holmes J., Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319. It meant, quite simply, that 'conviction by means of unlawful seizures and enforced confessions * * * should find no sanction in the judgments of the courts * * *,' Weeks v. United States, supra, 232 U.S. at page 392, 34 S.Ct. at page 344, and that such evidence 'shall not be used at all.' Silverthorne Lumber Co. v. United States, supra, 251 U.S. at page 392, 40 S.Ct. at page 183.
14
There are in the cases of this Court some passing references to the Weeks rule as being one of evidence. But the plain and unequivocal language of Weeks—and its later paraphrase in Wolf—to the effect that the Weeks rule is of constitutional origin, remains entirely undisturbed. In Byars v. United States, 1927, 273 U.S. 28, at pages 29—30, 47 S.Ct. 248, at pages 248—249, 71 L.Ed. 520, a unanimous Court declared that 'the doctrine (cannot) * * * be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of the unlawful search where a timely challenge has been interposed.' (Emphasis added.) The o urt, in Olmstead v. United States, 1928, 277 U.S. 438, at page 462, 48 S.Ct. 564, 567, 72 L.Ed. 944, in unmistakable language restated the Weeks rule:
15
'The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in court, really forbade its introduction if obtained by government officers through a violation of the amendment.'
16
In McNabb v. United States, 1943, 318 U.S. 332, at pages 339 340, 63 S.Ct. 608, at page 612, 87 L.Ed. 819, we note this statement:
17
'(A) conviction in the federal courts, the foundation of which is evidence obtained in disregard of liberties deemed fundamental by the Constitution, cannot stand. Boyd v. United States * * * Weeks v. United States * * *. And this Court has, on Constitutional grounds, set aside convictions, both in the federal and state courts, which were based upon confessions 'secured by protracted and repeated questioning of ignorant and untutored persons, in whose minds the power of officers was greatly magnified' * * * or 'who have been unlawfully held incommunicado without advice of friends or counsel' * * *.'
18
Significantly, in McNabb, the Court did then pass on to formulate a rule of evidence, saying, '(i)n the view we take of the case, however, it becomes unnecessary to reach the Constitutional issue (for) * * * (t)he principles governing the admissibility of evidence in federal criminal trials have not been restricted * * * to those derived solely from the Constitution.' At pages 340—341 of 318 U.S., at page 613 of 63 S.Ct.
II.
19
In 1949, 35 years after Weeks was announced, this Court, in Wolf v. People of State of Colorado, supra, again for the first time,6 discussed the effect of the Fourth Amendment upon the States through the operation of the Due Process Clause of the Fourteenth Amendment. It said:
20
'(W)e 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.' At page 28 of 338 U.S., at page 1361 of 69 S.Ct.
21
Nevertheless, after declaring that the '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 through the Due Process Clause,' cf. Palko v. State of Connecticut, 1937, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and announcing that it 'stoutly adhere(d)' to the Weeks decision, the Court decided that the Weeks exclusionary rule would not then be imposed upon the States as 'an essential ingredient of the right.' 338 U.S. at pages 27—29, 69 S.Ct. at page 1362. The Court's reasons for not considering essential to the right to privacy, as a curb imposed upon the States by the Due Process Clause, that which decades before had been posited as part and parcel of the Fourth Amendment's limitations upon federal encroachment of individual privacy, were bottomed on factual considerations.
22
While they are not basically relevant to a decision that theexclusionary rule is an essential ingredient of the Fourth Amendment as the right it embodies is vouchsafed against the States by the Due Process Clause, we will consider the current validity of the factual grounds upon which Wolf was based.
23
The Court in Wolf first stated that '(t)he contrariety of views of the States' on the adoption of the exclusionary rule of Weeks was 'particularly impressive' (338 U.S. at page 29, 69 S.Ct. at page 1362); and, in this connection that it could not 'brush aside the experience of States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy * * * by overriding the (States') relevant rules of evidence.' At pages 31—32 of 338 U.S., at pg e 1363 of 69 S.Ct. While in 1949, prior to the Wolf case, almost two-thirds of the States were opposed to the use of the exclusionary rule, now, despite the Wolf case, more than half of those since passing upon it, by their own legislative or judicial decision, have wholly or partly adopted or adhered to the Weeks rule. See Elkins v. United States, 1960, 364 U.S. 206, Appendix, at pages 224—232, 80 S.Ct. 1437, at pages 1448 1453, 4 L.Ed.2d 1669. Significantly, among those now following the rule is California, which, according to its highest court, was 'compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions * * *.' People v. Cahan, 1955, 44 Cal.2d 434, 445, 282 P.2d 905, 911, 50 A.L.R.2d 513. In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary doctrine against the States was that 'other means of protection' have been afforded 'the right to privacy.'7 338 U.S. at page 30, 69 S.Ct. at page 1362. The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment of the protection of other remedies has, moreover, been recognized by this Court since Wolf. See Irvine v. People of State of California, 1954, 347 U.S. 128, 137, 74 S.Ct. 381, 385, 98 L.Ed. 561.
24
Likewise, time has set its face against what Wolf called the 'weighty testimony' of People v. Defore, 1926, 242 N.Y. 13, 150 N.E. 585. There Justice (then Judge) Cardozo, rejecting adoption of the Weeks exclusionary rule in New York, had said that '(t)he Federal rule as it stands is either too strict or too lax.' 242 N.Y. at page 22, 150 N.E. at page 588. However, the force of that reasoning has been largely vitiated by later decisions of this Court. These include the recent discarding of the 'silver platter' doctrine which allowed federal judicial use of evidence seized in violation of the Constitution by state agents, Elkins v. United States, supra; the relaxation of the formerly strict requirements as to standing to challenge the use of evidence thus seized, so that now the procedure of exclusion, 'ultimately referable to constitutional safeguards,' is available to anyone even 'legitimately on (the) premises' unlawfully searched, Jones v. United States, 1960, 362 U.S. 257, 266—267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697; and finally, the formulation of a method to prevent state use of evidence unconstitutionally seized by federal agents, Rea v. United States, 1956, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233. Because there can be no fixed formula, we are admittedly met with 'recurring questions of the reasonableness of searches,' but less is not to be expected when dealing with a Constitution, and, at any rate, '(r) easonableness is in the first instance for the (trial court) to determine.' United States v. Rabinowitz, 1950, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653.
25
It, therefore, plainly appears that the factual considerations supporting the failure of the Wolf Court to include the Weeks exclusionary rule when it recognized the enforceability of the right to privacy against the States in 1949, while not basically relevant to the constitutional consideration, could not, in any analysis, now be deemed controlling.
III.
26
Some five years after Wolf, in answer to a plea made here Term after Term that we overturn its doctrine on applicability of the Weeks exclusionary rule, this Court indicated that such should not be done until the States had 'adequate opportunity to adopt or reject the (Weeks) rule.' Irvine v. People of State of California, supra, 347 U.S. at page 134, 74 S.Ct. at page 384. There again it was said:
27
'Never until June of 1949 did this Court hold the basic search-and-seizure prohibition in any way applicable to the states under the Fourteenth Amendment.' Ibid.
28
And only last Term, after again carefully re-examining the Wolf doctrine in Elkins v. United States, supra, the Court pointed out that 'the controlling principles' as to search and seizure and the problem of admissibility 'seemed clear' (364 U.S. at page 212, 1441 of 80 S.Ct.) until the announcement in Wolf 'that the Due Process Clause of the Fourteenth Amendment does not itself require state courts to adopt the exclusionary rule' of the Weeks case. At page 213 of 364 U.S., at page 1442 of 80 S.Ct. At the same time, the Court pointed out, 'the underlying constitutional doctrine which Wolf established * * * that the Federal Constitution * * * prohibits unreasonable searches and seizures by state officers' had undermined the 'foundation upon which the admissibility of stateseized evidence in a federal trial originally rested * * *.' Ibid. The Court concluded that it was therefore obliged to hold, although it chose the narrower ground on which to do so, that all evidence obtained by an unconstitutional search and seizure was inadmissible in a federal court regardless of its source. Today we once again examine Wolf's constitutional documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
IV.
29
Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then just as without the e eks rule the assurance against unreasonable federal searches and seizures would be 'a form of words', valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so epemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom 'implicit in 'the concept of ordered liberty." At the time that the Court held in Wolf that the Amendment was applicable to the States through the Due Process Clause, the cases of this Court, as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf 'stoutly adhered' to that proposition. The right to privacy, when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches—state or federal—it was logically and constitutionally necessary that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon as an essential ingredient of the right newly recognized by the Wolf case. In short, the admission of the new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to whthhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule 'is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.' Elkins v. United States, supra, 364 U.S. at page 217, 80 S.Ct. at page 1444.
30
Indeed, we are aware of no restraint, similar to that rejected today, conditioning the enforcement of any other basic constitutional right. The right to privacy, no less important than any other right carefully and particularly reserved to the people, would stand in marked contrast to all other rights declared as '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. This Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial, including, as it does, the right not to be convicted by use of a coerced confession, however logically relevant it be, and without regard to its reliability. Rogers v. Richmond, 1961, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. And nothing could be more certain that that when a coerced confession is involved, 'the relevant rules of evidence' are overridden without regard to 'the incidence of such conduct by the police,' slight or frequent. Why should not the same rule apply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods, papers, effect, documents, etc.? We find that, as to the Federal Government, the Fourth and Fifth Amendments and, as to the States, the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an 'intimate relation'8 in their perpetuation of 'principles of humanity and civil liberty (secured) * * * only after years of struggle.' Bram v. United States, 1897, 168 U.S. 532, 543—544, 18 S.Ct. 183, 187, 42 L.Ed. 568. They express 'supplementing phases of the same constitutional purpose—to maintain inviolate large areas of personal privacy.' Feldman v. United States, 1944, 322 U.S. 487, 489—490, 64 S.Ct. 1082, 18 3, 88 L.Ed. 1408. The philosophy of each Amendment and of each freedom is complementary to, although not dependent upon, that of the other in its sphere of influence—the very least that together they assure in either sphere is that no man is to be convicted on unconstitutional evidence. Cf. Rochin v. People of State of California, 1952, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183.
V.
31
Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment. Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. Moreover, as was said in Elkins, '(t)he very essence of a healthy federalism depends upon the avoidance of needless conflict between state and federal courts.' 364 U.S. at page 221, 80 S.Ct. at page 1446. Such a conflict, hereafter needless, arose this very Term, in Wilson v. Schnettler, 1961, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620, in which, and in spite of the promise made by Rea, we gave full recognition to our practice in this regard by refusing to restrain a federal officer from testifying in a state court as to evidence unconstitutionally seized by him in the performance of his duties. Yet the double standard recognized until today hardly put such a thesis into practice. In non-exclusionary States, federal officers, being human, were by it invited to and did, as our cases indicate, step across the street to the State's attorney with their unconstitutionally seized evidence. Prosecution on the basis of that evidence was then had in a state court in utter disregard of the enforceable Fourth Amendment. If the fruits of an unconstitutional search had been inadmissible in both state and federal courts, this inducement to evasion would have been sooner eliminated. There would be no need to reconcile such cases as Rea and Schnettler, each pointing up the hazardous uncertainties of our heretofore ambivalent approach.
32
Federal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches. 'However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.' Miller v. United States, 1958, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2 L.Ed.2d 1332. Denying shortcuts to only one of two cooperating law enforcement agencies tends naturally to breed legitimate suspicion of 'working arrangements' whose results are equally tainted. Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Lustig v. United States, 1949, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819.
33
There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine '(t)he criminal is to go free because the constable has blundered.' People v. Defore, 242 N.Y. at page 21, 150 N.E. at page 587. In some cases this will undoubtedly be the result.9 But, as was said in Elkins, 'there is another consideration—the imperative of judicial integrity.' 364U .S. at page 222, 80 S.Ct. at page 1447. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 1928, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944: 'Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. * * * If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.' Nor can it lightly be assumed that, as a practical matter, adoption of the exclusionary rule fetters law enforcement. Only last year this Court expressly considered that contention and found that 'pragmatic evidence of a sort' to the contrary was not wanting. Elkins v. United States, supra, 364 U.S. at page 218, 80 S.Ct. at page 1444. The Court noted that
34
'The federal courts themselves have operated under the exclusionary rule of Weeks for almost half a century; yet it has not been suggested either that the Federal Bureau of Investigation10 has thereby been rendered ineffective, or that the administration of criminal justice in the federal courts has thereby been disrupted. Moreover, the experience of the states is impressive * * *. The movement towards the rule of exclusion has been halting but seemingly inexorable.' Id., 364 U.S. at pages 218—219, 80 S.Ct. at pages 1444—1445.
35
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest.11 Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.
36
The judgment of the Supreme Court of Ohio is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
37
Reversed and remanded.
38
Mr. Justice BLACK, concurring.
39
For nearly fifty years, since the decision of this Court in Weeks v. United States,1 federal courts have refused to permit the introduction n to evidence against an accused of his papers and effects obtained by 'unreasonable searches and seizures' in violation of the Fourth Amendment. In Wolf v. People of State of Colorado, decided in 1948, however, this Court held that 'in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.'2 I concurred in that holding on these grounds:
40
'For reasons stated in my dissenting opinion in Adamson v. (People of State of) California, 332 U.S. 46, 68 (67 S.Ct. 1672, 1683, 91 L.Ed. 1903), I agree with the conclusion of the Court that the Fourth Amendment's prohibition of 'unreasonable searches and seizures' is enforceable against the states. Consequently, I should be for reversal of this case if I thought the Fourth Amendment not only prohibited 'unreasonable searches and seizures,' but also, of itself, barred the use of evidence so unlawfully obtained. But I agree with what appears to be a plain implication of the Court's opinion that the federal exclusionary rule is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate.'3
41
I am still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence against an accused of papers and effects seized from him in violation of its commands. For the Fourth Amendment does not itself contain any provision expressly precluding the use of such evidence, and I am extremely doubtful that such a provision could properly be inferred from nothing more than the basic command against unreasonable searches and seizures. Reflection on the problem, however, in the light of cases coming before the Court since Wolf, has led me to conclude that when the Fourth Amendment's ban against unreasonable searches and seizures is considered together with the Fifth Amendment's ban against compelled self-incrimination, a constitutional basis emerges which not only justifies but actually requires the exclusionary rule.
42
The close interrelationship between the Fourth and Fifth Amendments, as they apply to this problem,4 has long been recognized and, indeed, was expressly made the ground for this Court's holding in Boyd v. United States.5 There the Court fully discussed this relationship and declared itself 'unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.'6 It was upon this ground that Mr. Justice Rutledge largely relied in his dissenting opinion in the Wolf case.7 And, although I rejected the argument at that time, its force has, for me at least, become compelling with the more thorough understanding of the problem brought on by recent cases. In the final analysis, it seems to me that the Boyd doctrine, though perhaps not required by the express language of the Constitution strictly construed, is amply justified from an historical standpoint, soundly based in reason, and entirely consistent with what I regard to be the proper approach to interpretation of our Bill of Rights—an approach well set out by Mr. Justice Bradley in the Boyd case:
43
'(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 (the) courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'8
44
The case of Rochin v. People of California,9 which we decided three years after the Wolf case, authenticated, I think, the soundness of Mr. Justice Bradley's and Mr. Justice Rutledge's reliance upon the interrelationship between the Fourth and Fifth Amendments as requiring the exclusion of unconstitutionally seized evidence. In the Rochin case, three police officers, acting with neither a judicial warrant nor probable cause, entered Rochin's home for the purpose of conducting a search and broke down the door to a bedroom occupied by Rochin and his wife. Upon their entry into the room, the officers saw Rochin pick up and swallow two small capsules. They immediately seized him and took him in handcuffs to a hospital where the capsules were recovered by use of a stomach pump. Investigation showed that the capsules contained morphine and evidence of that fact was made the basis of his conviction of a crime in a state court.
45
When the question of the validity of that conviction was brought here, we were presented with an almost perfect example of the interrelationship between the Fourth and Fifth Amendments. Indeed, every member of this Court who participated in the decision of that case recognized this interrelationship and relied on it, to some extent at least, as justifying reversal of Rochin's conviction. The majority, though careful not to mention the Fifth Amendment's provision that '(n)o person * * * shall be compelled in any criminal case to be a witness against himself,' showed at least that it was not unaware that such a provision exists, stating: 'Coerced confessions offend the community's sense of fair play and decency. * * * It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach.'10 The methods used by the police thus were, according to the majority, 'too close to the rack and the screw to permit of constitutional differentiation,'11 and the case was reversed on the ground that these methods had violated the Due Process Clause of the Fourteenth Amendment in that the treatment accorded Rochin was of a kind that 'shocks the conscience,' 'offend(s) 'a sense of justice" and fails to 'respect certain decencies of civilized conduct.'12
46
I concurred in the reversal of the Rochin case, but on the ground that the Fourteenth Amendment made the Fifth Amendment's provision against sef -incrimination applicable to the States and that, given a broad rather than a narrow construction, that provision barred the introduction of this 'capsule' evidence just as much as it would have forbidden the use of words Rochin might have been coerced to speak.13 In reaching this conclusion I cited and relied on the Boyd case, the constitutional doctrine of which was, of course, necessary to my disposition of the case. At that time, however, these views were very definitely in the minority for only Mr. Justice Douglas and I rejected the flexible and uncertain standards of the 'shock-the-conscience test' used in the majority opinion.14
47
Two years after Rochin, in Irvine v. People of State of California,15 we were again called upon to consider the validity of a conviction based on evidence which had been obtained in a manner clearly unconstitutional and arguably shocking to the conscience. The five opinions written by this Court in that case demonstrate the utter confusion and uncertainty that had been brought about by the Wolf and Rochin decisions. In concurring, Mr. Justice CLARK emphasized the unsatisfactory nature of the Court's 'shock-the-conscience test,' saying that this 'test' 'makes for such uncertainty and unpredictability that it would be impossible to foretell—other than by guesswork—just how brazen the invasion of the intimate privacies of one's home must be in order to shock itself into the protective arms of the Constitution. In truth, the practical result of this ad hoc approach is simply that when five Justices are sufficiently revolted by local police action, a conviction is overturned and a guilty man may go free.'16
48
Only one thing emerged with complete clarity from the Irvine case—that is that seven Justices rejected the 'shock-the-conscience' constitutional standard enunciated in the Wolf and Rochin cases. But even this did not lessen the confusion in this area of the law because the continued existence of mutually inconsistent precedents together with the Court's inability to settle upon a majority opinion in the Irvine case left the situation at least as uncertain as it had been before.17 Finally, today, we clear up that uncertainty. As I understand the Court's opinion in this case, we again reject the confusing 'shock-the-conscience' standard of the Wolf and Rochin cases and, instead, set aside this state conviction in reliance upon the precise, intelligible and more predictable constitutional doctrine enunciated in the Boyd case. I fully agree with Mr. Justice Bradley's opinion that the two Amendments upon which the Boyd doctrine rests are of vital importance in our constitutional scheme of liberty and that both are entitled to a liberal rather than a niggardly interpretation. The courts of the country are entitled to know with as much certainty as possible what scope they cover. The Court's opinion, in my judgment, dissipates the doubt and uncertainty in this field of constitutional law and I am persuaded, for this and other reasons stated, to depart from my prior views, to accept the Boyd doctrine as controlling in this state case and to join the Court's judgment and opinion which are in accordance with that constitutional doctrine.
49
Mr. Justice DOUGLAS, concurring.
50
Though I have joined the opinion of the Court, I add a few words. This criminal proceeding started with a lawless search and seizure. The police entered a home forcefully, and seized documents that were later used to convict the occupant of a crime.
51
She lived alone with her fifteen-year-old daughter n the second-floor flat of a duplex in Cleveland. At about 1:30 in the afternoon of May 23, 1957, three policemen arrived at this house. They rang the bell, and the appellant, appearing at her window, asked them what they wanted. According to their later testimony, the policemen had come to the house on information from 'a confidential source that there was a person hiding out in the home, who was wanted for questioning in connection with a recent bombing.'1 To the appellant's question, however, they replied only that they wanted to question her and would not state the subject about which they wanted to talk.
52
The appellant, who had retained an attorney in connection with a pending civil matter, told the police she would call him to ask if she should let them in. On her attorney's advice, she told them she would let them in only when they produced a valid search warrant. For the next two and a half hours, the police laid siege to the house. At four o'clock, their number was increased to at least seven. Appellant's lawyer appeared on the scene; and one of the policemen told him that they now had a search warrant, but the officer refused to show it. Instead, going to the back door, the officer first tried to kick it in and, when that proved unsuccessful, he broke the glass in the door and opened it from the inside.
53
The appellant, who was on the steps going up to her flat, demanded to see the search warrant; but the officer refused to let her see it although he waved a paper in front of her face. She grabbed it and thrust it down the front of her dress. The policemen seized her, took the paper from her, and had her handcuffed to another officer. She was taken upstairs, thus bound, and into the larger of the two bedrooms in the apartment; there she was forced to sit on the bed. Meanwhile, the officers entered the house and made a complete search of the four rooms of her flat and of the basement of the house.
54
The testimony concerning the search is largely nonconflicting. The approach of the officers; their long wait outside the home, watching all its doors; the arrival of reinforcements armed with a paper;2 breaking into the house; putting their hands on appellant and handcuffing her; numerous officers ransacking through every room and piece of furniture, while the appellant sat, a prisoner in her own bedroom. There is direct conflict in the testimony, however, as to where the evidence which is the basis of this case was found. To understand the meaning of that conflict, one must understand that this case is based on the knowing possession3 of four little pamphlets, a couple of photographs and a little pencil doodle—all of which are alleged to be pornographic.
55
According to the police officers who participated in the search, these articles were found, some in appellant's dressers and som in a suitcase found by her bed. According to appellant, most of the articles were found in a cardboard box in the basement; one in the suitcase beside her bed. All of this material, appellant—and a friend of hers—said were odds and ends belonging to a recent boarder, a man who had left suddenly for New York and had been detained there. As the Supreme Court of Ohio read the statute under which appellant is charged, she is guilty of the crime whichever story is true.
56
The Ohio Supreme Court sustained the conviction even though it was based on the documents obtained in the lawless search. For in Ohio evidence obtained by an unlawful search and seizure is admissible in a criminal prosecution at least where it was not taken from the 'defendant's person by the use of brutal or offensive force against defendant.' State v. Mapp, 170 Ohio St. 427, 166 N.E.2d 387, at page 388, syllabus 2; State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490. This evidence would have been inadmissible in a federal prosecution. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. For, as stated in the former decision, 'The effect of the 4th 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 * * *.' Id., 232 U.S. at pages 391—392, 34 S.Ct. at page 344. It was therefore held that evidence obtained (which in that case was documents and correspondence) from a home without any warrant was not admissible in a federal prosecution.
57
We held in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, that the Fourth Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. But a majority held that the exclusionary rule of the Weeks case was not required of the States, that they could apply such sanctions as they chose. That position had the necessary votes to carry the day. But with all respect it was not the voice of reason or principle. As stated in the Weeks case, if evidence seized in violation of the Fourth Amendment can be used against an accused, 'his right to be secure against such searches and seizures, is of no value, and * * * might as well be stricken from the Constitution.' 232 U.S. at page 393, 34 S.Ct. at page 344.
58
When we allowed States to give constitutional sanction to the 'shabby business' of unlawful entry into a home (to use an expression of Mr. Justice Murphy, Wolf v. People of State of Colorado, 338 U.S. at page 46, 69 S.Ct. at page 1371), we did indeed rob the Fourth Amendment of much meaningful force. There are, of course, other theoretical remedies. One is disciplinary action within the hierarchy of the police system, including prosecution of the police officer for a crime. Yet as Mr. Justice Murphy said in Wolf v. People of State of Colorado, 338 U.S. at page 42, 69 S.Ct. at page 1369 'Self-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well-meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered.'
59
The only remaining remedy, if exclusion of the evidence is not required, is an action of trespass by the homeowner against the offending officer. Mr. Justice Murphy showed how onerous and difficult it would be for the citizen to maintain that action and how meagre the relief even if the citizen prevails. 338 U.S. 42 44, 69 S.Ct. 1369—1370. The truth is that trespass actions against officers who make unlawful searches and seizures are mainly illusory remedies.
60
Without judicial action making the exclusionary rule applicable to the States, Wolf v. People of State of Colorado in practical effect reduced the guarantee against unreasonable searches and seizures to 'a dead letter,' as Mr. Justice Rutledge said in his dissent. See 338 U.S. at page 47, 69 S.Ct. at page 1368.
61
Wolf . People of State of Colorado, supra, was decided in 1949. The immediate result was a storm of constitutional controversy which only today finds its end. I believe that this is an appropriate case in which to put an end to the asymmetry which Wolf imported into the law. See Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138; Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233; Elkins v. United States, supra; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. It is an appropriate case because the facts it presents show—as would few other cases—the casual arrogance of those who have the untrammelled power to invade one's home and to seize one's person.
62
It is also an appropriate case in the narrower and more technical sense. The issues of the illegality of the search and the admissibility of the evidence have been presented to the state court and were duly raised here in accordance with the applicable Rule of Practice.4 The question was raised in the notice of appeal, the jurisdictional statement and in appellant's brief on the merits.5 It is true that argument was mostly directed to another issue in the case, but that is often the fact. See Rogers v. Richmond, 365 U.S. 534, 535—540, 81 S.Ct. 735, 736—739, 5 L.Ed.2d 760. Of course, an earnest advocate of a position always believes that, had he only an additional opportunity for argument, his side would win. But, subject to the sound discretion of a court, all argument must at last come to a halt. This is especially so as to an issue about which this Court said last year that 'The arguments of its antagonists and of its proponents have been so many times marshalled as to require no lengthy elaboration here.' Elkins v. United States, supra, 364 U.S. 216, 80 S.Ct. 1443.
63
Moreover, continuance of Wolf v. People of State of Colorado in its full vigor breeds the unseemly shopping around of the kind revealed in Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620. Once evidence, inadmissible in a federal court, is admissible in a state court a 'double standard' exists which, as the Court points out, leads to 'working arrangements' that undercut federal policy and reduce some aspects of law enforcement to shabby business. The rule that supports that practice does not have the force of reason behind it.
64
Memorandum of Mr. Justice STEWART.
65
Agreeing fully with Part I of Mr. Justice HARLAN'S dissenting opinion, I express no view as to the merits of the constitutional issue which the Court today decides. I would, however, reverse the judgment in this case, because I am persuaded that the provision of § 2905.34 of the Ohio Revised Code, upon which the petitioner's conviction was based, is, in the words of Mr. Justice HARLAN, not 'consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.'
66
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.
67
In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is one element that should enter into deciding whether a past decision of this Court should be overruled. Apart from that I also believe that the Wolf rule represents sounder Constitutional doctrine than the new rule which now replaces it.
I.
68
From the Court's statement of the case one would gather that the central, if not controlling, issue on this appeal is whether ile gally state-seized evidence is Constitutionally admissible in a state prosecution, an issue which would of course face us with the need for re-examining Wolf. However, such is not the situation. For, although that question was indeed raised here and below among appellant's subordinate points, the new and pivotal issue brought to the Court by this appeal is whether § 2905.34 of the Ohio Revised Code making criminal the mere knowing possession or control of obscene material,1 and under which appellant has been convicted, is consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.2 That was the principal issue which was decided by the Ohio Supreme Court,3 which was tendered by appellant's Jurisdictional Statement,4 and which was briefed5 and argued6 in this Court.
69
In this posture of things, I think it fair to say that five members of this Court have simply 'reached out' to overrule Wolf. With all respect for the views of the majority, and recognizing that stare decisis carries different weight in Constitutional adjudication than it does in nonconstitutional decision, I can perceive no justification for regarding this case as an appropriate occasion for re-examining Wolf.
70
The action of the Court finds no support in the rule that decision of Constitutional issues should be avoided wherever possible. For in overruling Wolf the Court, instead of passing upon the validity of Ohio's § 2905.34, has simply chosen between two Constitutional questions. Moreover, I submit that it has chosen the more difficult and less appropriate of the two questions. The Ohio statute which, as construed by the State Supreme Court, punishes knowing possession or control of obscene material, irrespective of the purposes of such possession or control (with exceptions not here applicable)7 and irrespective of whether the accused had any reasonable opportunity to rid himself of the material after discovering that it was obscene,8 surely presents a Constitutional question which is both simpler and less far-reaching than the question which the Court decides today. It seems to me that justice might well have been done in this case without overturning a decision on which the administration of criminal law in many of the States has long justifiably relied.
71
Since the demands of the case before us do not require us to reach the question of the validity of Wolf, I think this case furnishes a singularly inappropriate occasion for reconsideration of that decision, if reconsideration is indeed warranted. Even the most cursory examination will reveal that the doctrine of the Wolf case has been of continuing importance in the administration of state criminal law. Indeed, certainly as regards its 'nonexclusionary' aspect, Wolf did no more than articulate the then existing assumption among the States that the federal cases enforcing the exclusionary rule 'do not bind (the States), for they construe provisions of the federal Constitution, the Fourth and Fifth Amendments, not applicable to the states.' People v. Defore, 242 N.Y. 13, 20, 150 N.E. 585, 587. Though, of course, not reflecting the full measure of this continuing reliance, I find that during the last three Terms, for instance, the issue of the inadmissibility of illegally state-obtained evidence appears on an average of about fifteen times per Term just in the in forma pauperis cases summarily disposed of by us. This would indicate both that the issue which is now being decided may well have untoward practical ramifications respecting state cases long since disposed of in reliance on Wolf, and that were we determined to re-examine that doctrine we would not lack future opportunity.
72
The occasion which the Court has taken here is in the context of a case where the question was briefed not at all and argued only extremely tangentially. The unwisdom of overruling Wolf without full-dress argument is aggravated by the circumstance that that decision is a comparatively recent one (1949) to which three members of the present majority have at one time or other expressly subscribed, one to be sure with explicit misgivings.9 I would think that our obligation to the States, on whom we impose this new rule, as well as the obligation of orderly adherence to our own processes would demand that we seek that aid which adequate briefing and argument lends to the determination of an important issue. It certainly has never been a postulate of judicial power that mere altered disposition, or subsequent membership on the Court, is sufficient warrant for overturning a deliberately decided rule of Constitutional law.
73
Thus, if the Court were bent on reconsidering Wolf, I think that there would soon have presented itself an appropriate opportunity in which we could have had the benefit of full briefing and argument. In any event, at the very least, the present case should have been set down for reargument, in view of the inadequate briefing and argument we have received on the Wolf point. To all intents and purposes the Court's present action amounts to a summary reversal of Wolf, without argument.
74
I am bound to say that what has been done is not likely to promote respect either for the Court's adjudicatory process or for the stability of its decisions. Having been unable, however, to persuade any of the majority to a different procedural course, I now turn to the merits of the present decision.
II.
75
Essential to the majority's argument against Wolf is the props ition that the rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 362, excluding in federal criminal trials the use of evidence obtained in violation of the Fourth Amendment, derives not from the 'supervisory power' of this Court over the federal judicial system, but from Constitutional requirement. This is so because no one, I suppose, would suggest that this Court possesses any general supervisory power over the state courts. Although I entertain considerable doubt as to the soundness of this foundational proposition of the majority, cf. Wolf v. People of State of Colorado, 338 U.S. at pages 39—40, 69 S.Ct. at pages 1367—1368 (concurring opinion), I shall assume, for present purposes, that the Weeks rule 'is of constitutional origin.'
76
At the heart of the majority's opinion in this case is the following syllogism: (1) the rule excluding in federal criminal trials evidence which is the product of all illegal search and seizure is a 'part and parcel' of the Fourth Amendment; (2) Wolf held that the 'privacy' assured against federal action by the Fourth Amendment is also protected against state action by the Fourteenth Amendment; and (3) it is therefore 'logically and constitutionally necessary' that the Weeks exclusionary rule should also be enforced against the States.10
77
This reasoning ultimately rests on the unsound premise that because Wolf carried into the States, as part of 'the concept of ordered liberty' embodied in the Fourteenth Amendment, the principle of 'privacy' underlying the Fourth Amendment (338 U.S. at page 27, 69 an illegal search and seizure is a 'part whatever configurations of the Fourth Amendment have been developed in the particularizing federal precedents are likewise to be deemed a part of 'ordered liberty,' and as such are enforceable against the States. For me, this does not follow at all.
78
It cannot be too much emphasized that what was recognized in Wolf was not that the Fourth Amendment as such is enforceable against the States as a facet of due process, a view of the Fourteenth Amendment which, as Wolf itself pointed out (338 U.S. at page 26, 69 S.Ct. at page 1360), has long since been discredited, but the principle of privacy 'which is at the core of the Fourth Amendment.' Id., 338 U.S. at page 27, 69 S.Ct. at page 1361. It would not be proper to expect or impose any precise equivalence, either as regards the scope of the right or the means of its implementation, between the requirements of the Fourth and Fourteenth Amendments. For the Fourth, unlike what was said in Wolf of the Fourteenth, does not state a general principle only; it is a particular command, having its setting in a pre-existing legal context on which both interpreting decisions and enabling statutes must at least build.
79
Thus, even in a case which presented simply the question of whether a particular search and seizure was constitutionally 'unreasonable'—say in a tort action against state officers—we would not be true to the Fourteenth Amendment were we merely to stretch the general principle of individual privacy on a Procrustean bed of federal precedents under the Fourth Amendment. But in this instance more than that is involved, for here we are reviewing not a determination that what the state police did was Constitutionally permissible (since the state court quite evidently assumed that it was not), but a determination that appellant was properly found guilty of conduct which, for present purposes, it is to be assumed the State could Constitutionally punish. Since there is not the slightest suggestion that Ohio's policy is 'affirmatively to sanction * * * police incursion into privacy' (338 U.S. at page 28, 69 S.Ct. at page 1361), compare Marcus v. Search Warrants, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, what the Court is now doing is to impose upon the States not only federal subt antive standards of 'search and seizure' but also the basic federal remedy for violation of those standards. For I think it entirely clear that the Weeks exclusionary rule is but a remedy which, by penalizing past official misconduct, is aimed at deterring such conduct in the future.
80
I would not impose upon the States this federal exclusionary remedy. The reasons given by the majority for now suddenly turning its back on Wolf seem to me notably unconvincing.
81
First, it is said that 'the factual grounds upon which Wolf was based' have since changed, in that more States now follow the Weeks exclusionary rule than was so at the time Wolf was decided. While that is true, a recent survey indicates that at present one-half of the States still adhere to the common-law non-exclusionary rule, and one, Maryland, retains the rule as to felonies. Berman and Oberst, Admissibility of Evidence Obtained by an Unconstitutional Search and Seizure, 55 N.W.L.Rev. 525, 532 533. But in any case surely all this is beside the point, as the majority itself indeed seems to recognize. Our concern here, as it was in Wolf, is not with the desirability of that rule but only with the question whether the States are Constitutionally free to follow it or not as they may themselves determine, and the relevance of the disparity of views among the States on this point lies simply in the fact that the judgment involved is a debatable one. Moreover, the very fact on which the majority relies, instead of lending support to what is now being done, points away from the need of replacing voluntary state action with federal compulsion.
82
The preservation of a proper balance between state and federal responsibility in the administration of criminal justice demands patience on the part of those who might like to see things move faster among the States in this respect. Problems of criminal law enforcement vary widely from State of State. One State, in considering the totality of its legal picture, may conclude that the need for embracing the Weeks rule is pressing because other remedies are unavailable or inadequate to secure compliance with the substantive Constitutional principle involved. Another, though equally solicitous of Constitutional rights, may choose to pursue one purpose at a time, allowing all evidence relevant to guilt to be brought into a criminal trial, and dealing with Constitutional infractions by other means. Still another may consider the exclusionary rule too rough-and-ready a remedy, in that it reaches only unconstitutional intrusions which eventuate in criminal prosecution of the victims. Further, a State after experimenting with the Weeks rule for a time may, because of unsatisfactory experience with it, decide to revert to a non-exclusionary rule. And so on. From the standpoint of Constitutional permissibility in pointing a State in one direction or another, I do not see at all why 'time has set its face against' the considerations which led Mr. Justice Cardozo, then chief judge of the New York Court of Appeals, to reject for New York in People v. Defore, 242 N.Y. 13, 150 N.E. 585, the Weeks exclusionary rule. For us the question remains, as it has always been, one of state power, not one of passing judgment on the wisdom of one state course or another. In my view this Court should continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems in criminal law enforcement.
83
Further, we are told that imposition of the Weeks rule on the States makes 'very good sense,' in that it will promote recognition by state and federal officials of their 'mutual obligation to respect the same fundamental criteria' in their approach to law enforcement, and will avoid "needless conflict between state and federal courts." Indeed the majority now finds an incongruity in Wolf's discriminating perception between the demands of 'ordered liberty' as respects the basic right of 'privacy' and the means of securin it among the States. That perception, resting both on a sensitive regard for our federal system and a sound recognition of this Court's remoteness from particular state problems, is for me the strength of that decision.
84
An approach which regards the issue as one of achieving procedural symmetry or of serving administrative convenience surely disfigures the boundaries of this Court's functions in relation to the state and federal courts. Our role in promulgating the Weeks rule and its extensions in such cases as Rea, Elkins, and Rios11 was quite a different one than it is here. There, in implementing the Fourth Amendment, we occupied the position of a tribunal having the ultimate responsibility for developing the standards and procedures of judicial administration within the judicial system over which it presides. Here we review state procedures whose measure is to be taken not against the specific substantive commands of the Fourth Amendment but under the flexible contours of the Due Process Clause. I do not believe that the Fourteenth Amendment empowers this Court to mould state remedies effectuating the right to freedom from 'arbitrary intrusion by the police' to suit its own notions of how things should be done, as, for instance, the California Supreme Court did in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, with reference to procedures in the California courts or as this Court did in Weeks for the lower federal courts.
85
A state conviction comes to us as the complete product of a sovereign judicial system. Typically a case will have been tried in a trial court, tested in some final appellate court, and will go no further. In the comparatively rare instance when a conviction is reviewed by us on due process grounds we deal then with a finished product in the creation of which we are allowed no hand, and our task, far from being one of over-all supervision, is, speaking generally, restricted to a determination of whether the prosecution was Constitutionally fair. The specifics of trial procedure, which in every mature legal system will vary greatly in detail, are within the sole competence of the States. I do not see how it can be said that a trial becomes unfair simply because a State determines that evidence may be considered by the trier of fact, regardless of how it was obtained, if it is relevant to the one issue with which the trial is concerned, the guilt or innocence of the accused. Of course, a court may use its procedures as an incidental means of pursuing other ends than the correct resolution of the controversies before it. Such indeed is the Weeks rule, but if a State does not choose to use its courts in this way, I do not believe that this Court is empowered to impose this much-debated procedure on local courts, however efficacious we may consider the Weeks rule to be as a means of securing Constitutional rights.
86
Finally, it is said that the overruling of Wolf is supported by the established doctrine that the admission in evidence of an involuntary confession renders a state conviction Constitutionally invalid. Since such a confession may often be entirely reliable, and therefore of the greatest relevance to the issue of the trial, the argument continues, this doctrine is ample warrant in precedent that the way evidence was obtained, and not just its relevance, is Constitutionally significant to the fairness of a trial. I believe this analogy is not a true one. The 'coerced confession' rule is certainly not a rule that any illegally obtained statements may not be used in evidence. I would suppose that a statement which is procured during a period of illegal detention, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, is, as much as unlawfully seized evidence, illegally obtained, but this Court has o nsistently refused to reverse state convictions resting on the use of such statements. Indeed it would seem the Court laid at rest the very argument now made by the majority when in Lisenba v. People of State of California, 314 U.S. 219, at page 235, 62 S.Ct. 280, at page 289, 86 L.Ed. 166, a state-coerced confession case, it said:
87
'It may be assumed (that the) treatment of the petitioner (by the police) * * * deprived him of his liberty without due process and that the petitioner would have been afforded preventive relief if he could have gained access to a court to seek it.
88
'But illegal acts, as such, committed in the course of obtaining a confession * * * do not furnish an answer to the constitutional question we must decide. * * * The gravamen of his complaint is the unfairness of the use of his confessions, and what occurred in their procurement is relevant only as it bears on that issue.' (Emphasis supplied.)
89
The point, then, must be that in requiring exclusion of an involuntary statement of an accused, we are concerned not with an appropriate remedy for what the police have done, but with something which is regarded as going to the heart of our concepts of fairness in judicial procedure. The operative assumption of our procedural system is that 'Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end.' Watts v. State of Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801. See Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 740, 5 L.Ed.2d 760. The pressures brought to bear against an accused leading to a confession, unlike an unconstitutional violation of privacy, do not, apart from the use of the confession at trial, necessarily involve independent Constitutional violations. What is crucial is that the trial defense to which an accused is entitled should not be rendered an empty formality by reason of statements wrung from him, for then 'a prisoner * * * (has been) made the deluded instrument of his own conviction.' 2 Hawkins, Pleas of the Crown (8th ed., 1824), c. 46, § 34. That this is a procedural right, and that its violation occurs at the time his improperly obtained statement is admitted at trial, is manifest. For without this right all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.
90
This, and not the disciplining of the police, as with illegally seized evidence, is surely the true basis for excluding a statement of the accused which was unconstitutionally obtained. In sum, I think the coerced confession analogy works strongly against what the Court does today.
91
In conclusion, it should be noted that the majority opinion in this case is in fact an opinion only for the judgment overruling Wolf, and not for the basic rationale by which four members of the majority have reached that result. For my Brother BLACK is unwilling to subscribe to their view that the Weeks exclusionary rule derives from the Fourth Amendment itself (see 367 U.S. at page 661, 81 S.Ct. at page 1694), but joins the majority opinion on the premise that its end result can be achieved by bringing the Fifth Amendment to the aid of the Fourth (see 367 U.S. at pages 662—665, 81 S.Ct. at pages 1695—1697).12 On that score I need only say that whatever the validity of the 'Fourth-Fifth Amendment' correlation which the Boyd case (116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746) found, see 8 Wigmore, Evidence (3d ed. 1940), § 2184, we have only very recently again reiterated the long-established doctrine of this Court that the Fifth Amendment privilege against self-incrimination is not apl icable to the States. See Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156.
92
I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.
1
The statute provides in pertinent part that
'No person shall knowingly * * * have in his possession or under his control an obscene, lewd, or lascivious book (or) * * * picture * * *.
'Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both.'
2
A police officer testified that 'we did pry the screen door to gain entrance'; the attorney on the scene testified that a policeman 'tried * * * to kick in the door' and then 'broke the glass in the door and somebody reached in and opened the door and let them in' the appellant testified that 'The back door was broken.'
3
Other issues have been raised on this appeal but, in the view we have taken of the case, they need not be decided. Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition and did not insist that Wolf be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf.
4
'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.'
5
The close connection between the concepts later embodied in these two Amendments had been noted at least as early as 1765 by Lord Camden, on whose opinion in Entick v. Carrington, 19 Howell's State Trials 1029, the Boyd court drew heavily. Lord Camden had noted, at 1073:
'It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty.'
6
See, however, National Safe Deposit Co. v. Stead, 1914, 232 U.S. 58, 34 S.Ct. 209, 58 L.Ed. 504, and Adams v. People of State of New York, 1904, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575.
7
Less than half of the States have any criminal provisions relating directly to unreasonable searches and seizures. The punitive sanctions of the 23 States attempting to control such invasions of the right of privacy may be classified as follows:
Criminal Liability of Affiant for Malicious Procurement of Search Warrant.—Ala.Code, 1958, Tit. 15, § 99; Alaska Comp.Laws Ann.1949, § 66—7—15; Ariz.Rev.Stat.Ann.1956, § 13—1454; Cal.Pen.Code § 170; Fla.Stat.1959, § 933.16, F.S.A.; Ga.Code Ann.1953, § 27—301; Idaho Code Ann.1948, § 18—709; Iowa Code Ann., 1950, § 751.38; Minn.Stat.Ann.1947, § 613.54; Mont.Rev.Codes Ann.1947, § 94—35—122; Nev.Rev.Stat. §§ 199.130, 199.140; N.J.Stat.Ann.1940, § 33:1—64; N.Y.Penn.Law, § 1786, N.Y.Code Crim.Proc. § 811; N.C.Gen.Stat.1953, § 15—27 (applies to 'officers' only); N.D.Century Code Ann.1960, §§ 12—17—08, 29—29 18; Okla.Stat., 1951, Tit. 21, § 585, Tit. 22, § 1239; Ore.Rev.Stat. § 141.990; S.D.Code, 1939 (Supp.1960) § 34.9904; Utah Code Ann.1953, § 77—54—21.
Criminal Liability of Magistrate Issuing Warrant Without Supporting Affidavit.—N.C.Gen.Stat.1953, § 15—27; Va.Code Ann., 1960 Replacement Volume, § 19.1—89.
Criminal Liability of Officer Willfully Exceeding Authority of Search Warrant.—Fla.Stat.Ann.1944, § 933.17; Iowa Code Ann., 1950, § 751.39; Minn.Stat.Ann.1947, § 613.54; Nev.Rev.Stat. § 199.450; N.Y.Pen.Law, § 1847, N.Y.Code Crim.Proc. § 812; N.D.Century Code Ann.1960, §§ 12—17—07, 29—29—19; Okla.Stat.1951, Tit. 21, § 536, Tit. 22, § 1240; S.D.Code, 1939 (Supp.1960) § 34.9905; Tenn.Code Ann.1955, § 40—510; Utah Code Ann.1953, § 77—54 22.
Criminal Liability of Officer for Search with Invalid Warrant or no Warrant.—Idaho Code Ann.1948, § 18—703; Minn.Stat.Ann.1947, §§ 613.53, 621.17; Mo.Ann.Stat.1953, § 558.190; Mont.Rev.Codes Ann.1947, § 94—3506; N.J.Stat.Ann.1940, § 33:1—65; N.Y.Pen.Law, § 1846; N.D.Century Code Ann.1960, § 12—17—06; Okla.Stat.Ann.1958, Tit. 21, § 535; Utah Code Ann.1953, § 76—28—52; Va.Code Ann.1960 Replacement Volume, § 19.1—88; Wash.Rev.Code §§ 10.79.040, 10.79.045.
8
But compare Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 965, 86 L.Ed. 1302, and Chambers v. State of Florida, 309 U.S. 227, 236, 60 S.Ct. 472, 477, 84 L.Ed. 716, with Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.
9
As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected. We note, moreover, that the class of state convictions possibly affected by this decision is of relatively narrow compass when compared with Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209; Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 and Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126. In those cases the same contention was urged and later proved unfounded. In any case, further delay in reaching the present result could have no effect other than to compound the difficulties.
10
See the remarks of Mr. Hoover, Director of the Federal Bureau of Investigation, FBI Law Enforcement Bulletin, September, 1952, pp. 1—2, quoted in Elkins v. United States, 364 U.S. 206, 218—219, 80 S.Ct. 1437, 1444—1445, note 8.
11
Cf. Marcus v. Search Warrant, etc., 367 S.Ct. 717, 81 S.Ct. 1708.
1
232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, decided in 1914.
2
338 U.S. 25, 33, 69 S.Ct. 1359, 1364, 93 L.Ed. 1782.
3
Id., 338 U.S. at pages 39—40, 69 S.Ct. at page 1367.
4
The interrelationship between the Fourth and the Fifth Amendments in this area does not, of course, justify a narrowing in the interpretation of either of these Amendments with respect to areas in which they operate separately. See Feldman v. United States, 322 U.S. 487, 502—503, 64 S.Ct. 1082, 1089, 88 L.Ed. 1408 (dissenting opinion); Frank v. State of Maryland, 359 U.S. 360, 374—384, 79 S.Ct. 804, 812—818, 3 L.Ed.2d 877 (dissenting opinion).
5
116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.
6
Id., 116 U.S. at page 633, 6 S.C. at page 534.
7
338 U.S. at pages 47—48, 69 S.Ct. at pages 1368—1369.
8
116 U.S. at page 635, 6 S.Ct. at page 535. As the Court points out, Mr. Justice Bradley's approach to interpretation of the Bill of Rights stemmed directly from the spirit in which that great charter of liberty was offered for adoption on the floor of the House of Representatives by its framer, James Madison: '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.' I Annals of Congress 439 (1789).
9
342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.
10
Id., 342 U.S. at page 173, 72 S.Ct. at page 210.
11
Id., 342 U.S. at page 172, 72 S.Ct. at page 210.
12
Id., 342 U.S. at pages 172, 173, 72 S.Ct. at pages 209 210.
13
Id., 342 U.S. at pages 174—177, 72 S.Ct. at pages 210 212.
14
For the concurring opinion of Mr. Justice Douglas see id., 342 U.S. at pages 177—179, 72 S.Ct. at pages 212, 213.
15
347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561.
16
Id., 347 U.S. at page 138, 74 S.Ct. at page 386.
17
See also United States v. Rabinowitz, 339 U.S. 56, 66—68, 70 S.Ct. 430, 444—445, 94 L.Ed. 653 (dissenting opinion).
1
This 'confidential source' told the police, in the same breath, that 'there was a large amount of policy paraphernalia being hidden in the home.'
2
The purported warrant has disappeared from the case. The State made no attempt to prove its existence, issuance or contents, either at the trial or on the hearing of a preliminary motion to suppress. The Supreme Court of Ohio said: 'There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home. * * * Admittedly * * * there was no warrant authorizing a search * * * for any 'lewd, or lascivious book * * * print, (or) picture." 170 Ohio St. 427, 430, 166 N.E.2d 387, 389. (Emphasis added.)
3
Ohio Rev.Code, § 2905.34: 'No person shall knowingly * * * have in his possession or under his control an obscene, lewd, or lascivious book, magazine, pamphlet, paper, writing, advertisement, circular, print, picture * * * or drawing * * * of an indecent or immoral nature * * *. Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both.'
4
'The notice of appeal * * * shall set forth the questions presented by the appeal * * *. Only the questions set forth in the notice of appeal or fairly comprised therein will be considered by the court.' Rule 10, subd. 2(c), Rules of the Supreme Court of the United States, 28 U.S.C.A.
5
'Did the conduct of the police in procuring the books, papers and pictures placed in evidence by the Prosecution violate Amendment IV, Amendment V, and Amendment XIV Section 1 of the United States Constitution * * *?'
1
The material parts of that law are quoted in note 1 of the Court's opinion, 367 U.S. at page 643, 81 S.Ct. at page 1685.
2
In its note 3, 367 U.S. at page 646, 81 S.Ct. at page 1686, the Court, it seems to me, has turned upside down the relative importance of appellant's reliance on the various points made by him on this appeal.
3
See 170 Ohio St. 427, 166 N.E.2d 387. Because of the unusual provision of the Ohio Constitution requiring 'the concurrence of at least all but one of the judges' of the Ohio Supreme Court before a state law is held unconstitutional (except in the case of affirmance of a holding of unconstitutionality by the Ohio Court of Appeals), Ohio Const. Art. IV, § 2, the State Supreme Court was compelled to uphold the constitutionality of § 2905.34, despite the fact that four of its seven judges thought the statute offensive to the Fourteenth Amendment.
4
Respecting the 'substantiality' of the federal questions tendered by this appeal, appellant's Jurisdictional Statement contained the following:
'The Federal questions raised by this appeal are substantial for the following reasons:
'The Ohio Statute under which the defendant was convicted violates one's sacred right to own and hold property, which has been held inviolate by the Federal Constitution. The right of the individual 'to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to be a clear infringement of the constitutional rights of the individual' (Justice Herbert's dissenting Opinion, Appendix 'A'). Many convictions have followed that of the defendant in the State Courts of Ohio based upon this very same statute. Unless this Honorable Court hears this matter and determines once and for all
that the Statute is unconstitutional as defendant contends, there will be many such appeals. When Sections 2905.34, 2905.37 and 3767.01 of the Ohio Revised Code (the latter two Sections providing exceptions to the coverage of § 2905.34 and related provisions of Ohio's obscenity statutes) are read together, * * * they obviously contravene the Federal and State constitutional provisions; by being convicted under the Statute involved herein, and in the manner in which she was convicted, Defendant-Appellant has been denied due process of law; a sentence of from one (1) to seven (7) years in a penal institution for alleged violation of this unconstitutional section of the Ohio Revised Code deprives the defendant of her right to liberty and the pursuit of happiness, contrary to the Federal and State constitutional provisions, for circumstances which she herself did not put in motion, and is a cruel and unusual punishment inflicted upon her contrary to the State and Federal Constitutions.'
5
The appellant's brief did not urge the overruling of Wolf. Indeed it did not even cite the case. The brief of the appellee merely relied on Wolf in support of the State's contention that appellant's conviction was not vitiated by the admission in evidence of the fruits of the alleged unlawful search and seizure by the police. The brief of theA merican and Ohio Civil Liberties Unions, as amici, did in one short concluding paragraph of its argument 'request' the Court to re-examine and overrule Wolf, but without argumentation. I quote in full this part of their brief:
'This case presents the issue of whether evidence obtained in an illegal search and seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has taken on this issue in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. It is our purpose by this paragraph to respectfully request that this Court re-examine this issue and conclude that the ordered liberty concept guaranteed to persons by the due process clause of the Fourteenth Amendment necessarily requires that evidence illegally obtained in violation thereof, not be admissible in state criminal proceedings.'
6
Counsel for appellant on oral argument, as in his brief, did not urge that Wolf be overruled. Indeed, when pressed by questioning from the bench whether he was not in fact urging us to overrule Wolf, counsel expressly disavowed any such purpose.
7
'2905.37 Legitimate publications not obscene.
'Sections 2905.33 to 2905.36, inclusive, of the Revised Code do not affect teaching in regularly chartered medical colleges, the publication of standard medical books, or regular practitioners of medicine or druggists in their legitimate business, nor do they affect the publication and distribution of bona fide works of art. No articles specified in sections 2905.33, 2905.34, and 2905.36 of the Revised Code shall be considered a work of art unless such article is made, published, and distributed by a bona fide association of artists or an association for the advancement of art whose demonstrated purpose does not contravene sections 2905.06 to 2905.44, inclusive, of the Revised Code, and which is not organized for profit.'
§ 3767.01(C)
'This section and sections 2905.34, * * * 2905.37 * * * of the Revised Code shall not affect * * * any newspaper, magazine, or other publication entered as second class matter by the post-office department.'
8
The Ohio Supreme Court, in its construction of § 2905.34, controlling upon us here, refused to import into it any other exceptions than those expressly provided by the statute. See note 7, supra. Instead it held that 'If anyone looks at a book and finds it lewd, he is forthwith, under this legislation, guilty * * *.' (170 OhioS t. 427, 166 N.E.2d 391.)
9
See Wolf v. People of State of Colorado, 338 U.S. at pages 39—40, 69 S.Ct. at pages 1367—1368; Irvine v. People of State of California, 347 U.S. 128, 133—134, and at pages 138—139, 74 S.Ct. 381, 383—384, and at pages 386—387, 98 L.Ed. 561. In the latter case, decided in 1954, Mr. Justice Jackson, writing for the majority, said (347 U.S. at page 134, 74 S.Ct. at page 384): 'We think that the Wolf decision should not be overruled, for the reasons so persuasively stated therein.' Compare Schwartz v. 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, in which the Wolf case was discussed and in no way disapproved. And see Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678, which relied on Schwartz.
10
Actually, only four members of the majority support this reasoning. See, 367 U.S. at pages 685—686, 81 S.Ct. at page 1708.
11
Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669; Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.
12
My Brother STEWART concurs in the Court's judgment on grounds which have nothing to do with Wolf.
| 01
|
367 U.S. 556
81 S.Ct. 1720
6 L.Ed.2d 1028
Armando PIEMONTE, Petitioner,v.UNITED STATES.
No. 122.
Argued March 21, 1961.
Decided June 19, 1961.
Mr. Melvin B. Lewis, Chicago, Ill., for petitioner.
Mr. Theodore George Gilinsky, Washington, D.C., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Petitioner, Armando Piemonte, while serving a six-year sentence for the sale and possession of heroin, was brought by writ of habeas corpus ad testificandum before a federal grand jury inquiring into narcotics offenses. Having consulted his counsel prior to his appearance, before the grand jury he refused to answer all questions concerning his crime as well as other transactions in narcotics, under the claim of his privilege against self-incrimination. Three days later, the United States Attorney petitioned for an order directing Piemonte to answer the questions put to him. The petition stated that the grand jury was conducting an investigation of illegal narcotics activities, that Piemonte's testimony was required for the investigation in the public interest, that having been questioned on matters relating to narcotics Piemonte claimed his privilege against self-incrimination, wherefore request was made that Piemonte be required to testify pursuant to 18 U.S.C. § 1406, 18 U.S.C.A. § 1406. That provision of the Narcotic Control Act of 1956 gives immunity from future prosecution to any witness who is compelled by court order to testify before a federal court or grand jury concerning violations of the narcotics laws.1
2
The section's breadth and constitutionality were considered earlier this Term in Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249.
3
The district judge, having granted Piemonte immunity from 'prosecution which might arise from any answers that you give to this Grand Jury concerning the matter of their investigation,' ordered him to testify 'relative to the aforementioned inquiry of said Grand Jury * * *.' Piemonte was granted an opportunity to consult his lawyer and his duty to appear before the grand jury was delayed for a day. The next morning he renewed his refusal to answer the questions propounded to him about narcotics activities and again invoked his Fifth Amendment privilege.
4
That afternoon he was taken back before the District Court to answer an order to show cause why he should not be cited for contempt for deliberately disobeying the previous order to testify. He was represented by his counsel at this proceeding. Having examined the transcript of the grand jury's morning proceedings, the judge asked petitioner if he persisted in refusing to answer the questions, to which Piemonte replied in the affirmative. The judge gave Piemonte's counsel four days to prepare for a plenary hearing of the charge of contumacy, but denied Piemonte's motion for a jury trial.
5
At the subsequent hearing, the Government stood on its case based on the grand jury transcripts and the court's order to testify. The judge again asked Piemonte if he persisted in his refusal to obey the court's order. Piemonte took the stand in his own behalf, and made the following explanation for his refusal to testify:
6
'Well. I am doing time in the penitentiary. I fear for my life. I fear for the life of my wife, my two stepchildren, and my family. I can't do something like that. I want to live, too.'
7
After his counsel's elaboration of this argument, the judge again asked Piemonte if he would testify. Upon his refusal, the judge declared him guilty of contempt of court for willful failure to obey a lawful order. After hearing argument on the sentence, the judge once again offered to give petitioner the opportunity to answer the questions. The refusal having been made definitive, sentence was fixed at eighteen months, to commence at the termination of the imprisonment he was serving.
8
The contempt judgment was affirmed by the Court of Appeals for the Seventh Circuit, 276 F.2d 148, and we granted certiorari 364 U.S. 811, 81 S.Ct. 46, 5 L.Ed.2d 44.
9
This record surely evinces the utmost solicitude by the trial court for the defendant's interests. His only claim for reversal here is based upon alleged defects in the proceedings which resulted in his conviction of criminal contempt.2
10
Petitioner's first claim is that he was subjected to so many differing interpretations of whether he had a privilege to refrain from testifying as to certain questions that the order commanding him to answer lacked sufficient clarity. This is a sheer afterthought. Neither Piemonte nor his counsel ever claimed confusion in the District Court as a basis for his refusal to testify. Nor do the facts reveal that petitioner could have been misled by the out-of-context statements he pieces together for purposes of review.
11
The first morning before the grand jury, the government attorney asked petitioner:
12
'Didn't your lawyer advise you, Mr. Piemonte, on those matters that you pleaded guilty to in the indictment that you have no Constitutional privilege against self-incrimination?'
13
However, the Government, in order to avoid any argumentative opportunities as to the scope of the area for which it sought immunity, did not attempt to secure an order directing answers for the particular questions relating to matters involved in his former conviction. It requested a broad order of immunity to cover the entire scope of what was under investigation by the grand jury. The United States Attorney told the district judge in seeking the order compelling testimony:
14
'(S)o that the Court would not have any misconception of the idea of the Government counsel on this matter, we, too, think that the constitutional privilege claimed by the witness is well taken in this matter.'
15
Petitioner plainly must have known—and gave every indication that he knew—that he was required to answer all questions put to him by the grand jury in return for equivalent, compensating immunity. We find no merit in an argument which is contradicted by petitioner's own assertion, supported by his counsel's argument, that he refused to testify solely because of fear.
16
Secondly, petitioner argues that the oral grant of immunity by the district judge was null and void, because the judge said 'this Court now grants you immunity from prosecution * * *' and 'I now grant you immunity from such prosecution * * *,' when in reality the statute, not the court, grants the immunity. The puerility of this contention is emphasized by petitioner's disregard of the judge's introductory basis of his pronouncement as 'in accordance with the provisions of the Narcotic Control Act.'
17
The remaining contentions of petitioner are of even less substantiality, and accordingly the judgment below is affirmed.
18
Affirmed.
19
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS concurs, dissenting.
20
This case represents another long step in the constantly expanding use by the federal district judges of their summary contempt power to mete out severe prison sentences without according the defendants the benefit of a jury trial and the other rights guaranteed by the Fifth and Sixth Amendments.1 In an ordinary case of this nature, I would content myself with saying that the conviction should be reversed on the ground that a federal district judge has no power to impose such punishment in a summary proceeding. See Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed.2d 672 (dissenting opinion); Reina v. United States, 364 U.S. 507, 515, 81 S.Ct. 260, 265, 5 L.Ed.2d 249 (dissenting opinion). However, the facts of this case are so disquieting that I am compelled to add a few adi tional comments.
21
In 1958, the petitioner was convicted of selling and possessing narcotics in violation of the federal narcotics laws and was sentenced by a Federal District Court to six years' imprisonment. In 1959, while serving his sentence at the Leavenworth Penitentiary, the petitioner was subpoenaed to testify before a federal grand jury conducting an investigation of possible narcotics offenses. He was asked to indicate where he had obtained the narcotics which he was convicted of having possessed and sold. Invoking his Fifth Amendment privilege against self-incrimination, the petitioner refused to answer the question.2 He was then asked whether he knew several named individuals and whether he had obtained the narcotics from any of those individuals. Still relying upon his Fifth Amendment privilege, the petitioner refused to answer each of the questions. On petition of the Government, the District Court authorized the granting of immunity to the petitioner pursuant to 18 U.S.C. § 1406, 18 U.S.C.A. § 1406, and instructed him to answer the questions asked by the grand jury. Upon being recalled before the grand jury, the petitioner again invoked the Fifth Amendment and refused to identify those from whom he had obtained the narcotics which constituted the basis for his 1958 conviction.3 In response to a subsequent order to show cause why he should not be held in contempt of court, the petitioner asserted, as an additional reason for not answering, that the lives of his wife and children, as well as his own life, would be endangered were he to answer the questions. Having denied the petitioner's request for a jury trial, the district judge summarily found the petitioner guilty of contempt of court and sentenced him to eighteen months' imprisonment, to be served after the completion of the six-year sentence imposed in 1958.
22
In my opinion, the Government has subjected the petitioner to unjustifiable harassment. The petitioner has been convicted for his admittedly illegal conduct and is presently paying his debt to society for that conduct. However, not being satisfied with this punishment, the Government sought to extract from the petitioner, under the threat of a contempt conviction, testimony which it could not have compelled at the original trial in 1958, and which it knows might well endanger petitioner's life and the lives of his loved ones. In my view, the Government's attempt to compel the petitioner to testify about conduct for which he has already been punished, and the District Court's imposition of an additional term in the penitentiary for petitioner's refusal to testify about such conduct represents the type of harassment which violates the spirit of the Double Jeopardy Clause of the Fifth Amendment. Cf. Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 671, 3 L.Ed.2d 729 (separate opinion of Mr. Justice Brennan); Ciucci v. State of Illinois, 356 U.S. 571, 573, 78 S.Ct. 839, 840, 2 L.Ed.2d 983 (dissenting opinion). I think it can fairly be said that the treatment which the petitioner has received from the Government and the District Court falls far short of that fundamental fairness which the Constitution guarantees and to which even the basest prisoner in the penitentiary is entitled.4 Therefore, even if the Court is unwilling to recognize that the Constitution prohibits the imposition of punishment in a summary proceeding, it ought to exercise its supervisory power over the lower federal courts to rectify the abuse of the summary contempt power which the record in this case makes manifest. See Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11.
23
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
24
Petitioner, while a prisoner in a federal penitentiary serving a six-year sentence on a narcotics conviction, was summoned before a grand jury and interrogated about transactions in narcotics.
I.
25
One series of questions was opened with the following: 'Mr. Piemonte, were you in the narcotics business in 1954?' Following the tender of immunity, petitioner was again asked a series of questions, some of them relating to transactions in narcotics in that year. Among the questions was the following: 'Have you supplied Jeremiah Pullings with any heroin?'
26
These questions and these refusals to answer were on August 10 and 14, 1959. The sentence for contempt was imposed on August 18, 1959. After that date and before February 29, 1960, the date when the Court of Appeals affirmed the appeal, the grand jury returned another indictment against petitioner. This was on September 2, 1959. This indictment charged petitioner and others with a conspiracy to buy and sell narcotics commencing in August 1954. One of the overt acts charged was a conversation in 1955 between Jeremiah Pullings and one of petitioner's co-conspirators under the September 2, 1959, indictment. These 1954 and 1955 transactions, for which petitioner now stands indicted, were ones on which he refused to testify and for which he has been committed for contempt.
27
Once an indictment was returned, the proceedings of this grand jury became a part of a criminal prosecution directed against petitioner. Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110; United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376. When the citizen is formally accused by indictment, he has a constitutional right to stand mute and to refuse to testify. His right not to take the stand in a federal criminal trial transcends his privilege against self-incrimination. No immunity statute, no pressure of government, no threats of the prosecution can be used to deprive the citizen of this right. See Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650; Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84. And it is unthinkable that a district judge would ever hold a defendant in contempt because he refused to take the stand at his own trial. The district judge did no such thing here. But that was the posture of the case when it was decided by the Court of Appeals. For by then the matters about which petitioner refused to answer had become in form and in effect an indictment against him.
28
There is no power in our free society to compel a person to talk about a matter on which he has been indicted or to penalize him for failure to do so. We might as well say that an accused can be committed for contempt for failure to take the stand at his own trial.
29
We are advised that after we granted certiorari the indictment against petitioner was dismissed on motion of the Government for lack of evidence. That seems irrelevant. The truth is that the grand jury before which petitioner was summoned did indict him. Petitioner was in fact held in contempt for refusal to testify in a criminal proceeding against him. That is not permissible under the procedures of our free society, whatever may have been the ultimate fate of that criminal proceeding.
II.
30
I think the imposition of an eighteen months' sentence was beyond the power of a federal court in a summary proceeding. That was the view stated by Mr. Justice Black in his dissenting opinion in Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed.2d 672, with which I agreed then and still agree. There is nothing I can find in the Constitution which permits those who defy a court's decree to be tried in one way and those who defy a mandate of the Congress1 or an order of the Executive2 to be tried in another way. Whatever the criminal charge may be, an accused is entitled to the protections afforded by the Constitution—indictment by a grand jury and trial before a petit jury which sits to determine guilt. Determination of guilt by a judge, without these safeguards interposed between the accused and government, marks a continuing erosion of civil rights. The evil is compounded here by reason of the fact that contempt is used to increase a punishment already imposed for an offense as respects which no second indictment could ever be returned. Criminal contempt is used to undermine not only the guarantees of an indictment by a grand jury and a trial by one's peers but also to destroy the protection of double jeopardy.
31
Plainly this judgment of conviction should not stand.
1
'Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury or court of the United States involving any violation of—
'(1) any provision of part I or part II of subchapter A of chapter 39 of the Internal Revenue Code of 1954 the penalty for which is provided in subsection (a) or (b) of section 7237 of such Code,
'(2) subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended (21 U.S.C., sec. 174), or
'(3) the Act of July 11, 1941, as amended (21 U.S.C., sec. 184a), is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of h is section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.'
2
Neither before the Court of Appeals nor here was fear for himself or his family urged by Piemonte as a valid excuse from testifying. Nor would this be a legal excuse. Every citizen of course owes to his society the duty of giving testimony to aid in the enforcement of the law. See Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 648, 40 L.Ed. 819. Lord Chancellor Hardwicke's pithy phrase cano t be too often recalled: '(T)he public has a right to every man's evidence.' 12 Hansard's Debates 693; 8 Wigmore, Evidence (3d ed.), p. 64, § 2192.
If two persons witness an offense—one being an innocent bystander and the other an accomplice who is thereafter imprisoned for his participation—the latter has no more right to keep silent than the former. The Government of course has an obligation to protect is citizens from harm. But fear of reprisal offers an immunized prisoner no more dispensation from testifying than it does any innocent bystander without a record.
1
Only in the last few years has it become the fashion for district judges to use the summary contempt power as a device for imposing long terms of imprisonment. See, e.g., Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (two years' imprisonment); Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (fifteen months' imprisonment); Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (three years' imprisonment); Collins v. United States, 9 Cir., 269 F.2d 745 (three years' imprisonment); Tedesco v. United States, 6 Cir., 255 F.2d 35 (two years' imprisonment); Corona v. United States, 6 Cir., 250 F.2d 578 (two years' imprisonment). Prior to this recent trend, the summary contempt power was seldom used to impose more than a nominal fine or a short term of imprisonment. See Brown v. United States, supra, 359 U.S. at pages 58—59, 79 S.Ct. at pages 550—551 (dissenting opinion).
2
'Q. You are now incarcerated in the penitentiary, are you not, Mr. Piemonte? A. That's right.
'Q. Which one? A. Leavenworth Penitentiary.
'Q. You are serving a term of six years? A. Six years.
'Q. And that is for the sale and possession of heroin? A. Yes, sir.
'Q. Mr. Piemonte, that sale and possession of heroin, there were two sales, were there not, one ounce and 95 grains of heroin that you sold for $3100.00, and another sale—the first one was on November 23, 1957, and the second one was on November 27, 1957, when you sold eight ounces 354 grains for $3,000.00 to Agent Davis; those were the charges in the indictment? A. Right.
'Q. Now, Mr. Piemonte, our information is that you were in the narcotic business-Strike that question.
'These two sales of heroin, the first one for $3100.00, and the second one for $3,000.00, on November 23, 1957, and November 27, 1957, will you tell the Grand Jury, please, where you got the heroin? A. Sir, I am taking the 5th Amendment. I decline to answer any questions under the Constitution, the 5th Amendment.'
3
'Q. Now I am going to go over some of those questions that you claimed your privilege on and repeat them to you.
'Now you were convictd in the Federal Court here in Chicago for the sale of heroin on November 23, 1957 that you got $3100 for and another sale on the 27th day of November 1957 that you got $3,000 for.
'Now those were the two sales upon which you were convicted and sentenced to the penitentiary at Leavenworth, is that right? A. Right.
'Q. Now the question:
'These two sales of heroin, the first one for $3100 and the second one for $3,000 on November 23, 1957 and November 27, 1957, will you tell the Grand Jury, please, where you got that heroin? A. I stand on the Fifth Amendment. I decline to answer as it may tend to incriminate me.'
4
I do not mean to imply that a person who is incarcerated may, for that reason alone, be excused from testifying before a grand jury. However, I do believe that he cannot be compelled to testify concerning the illegal activity for which he has been incarcerated.
1
See Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273.
2
See Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194.
| 01
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367 U.S. 717
81 S.Ct. 1708
6 L.Ed.2d 1127
William MARCUS et al., Appellants,v.SEARCH WARRANTS OF PROPERTY AT 104 EAST TENTH STREET, KANSAS CITY, MISSOURI, et al.
No. 225.
Argued March 30, 1961.
Decided June 19, 1961.
Mr. Sidney M. Glazer, Berkeley, Mo., for appellants.
Mr. Fred L. Howard, Jefferson City, Mo., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This appeal presents the question whether due process under the Fourteenth Amendment was denied the appellants by the application in this case of Missouri's procedures authorizing the search for and seizure of allegedly obscene publications preliminarily to their destruction by burning or otherwise if found by a court to be obscene. The procedures are statutory, but are supplemented by a rule of the Missouri Supreme Court.1 The warrant for search for and seizure of obscene material issues on a sworn complaint filed with a judge or magistrate.2 If the complainant states 'positively and not upon information or belief,' or states 'evidential facts from which such judge or magistrate determines the existence of probable cause' to believe that obscene material 'is being held or kept in any place or in any building,' 'such judge or magistrate shall issue a search warrant directed to any peace officer commanding him to search the place therein described and to seize and bring before such judge or magistrate the personal property therein described.'3 The owner of the property is not afforded a hearing before the warrant issues; the proceeding is ex parte. However, the judge or magistrate issuing the warrant must fix a date, not less than five nor more than 20 days after the seizure, for a hearing to determine whether the seized material is obscene.4 The owner of the material may appear at such hearing and defend against the charge.5 No time limit is provided within which the judge must announce his decision. If the judge finds that the material is obscene, he is required to order it to be publicly destroyed, by burning or otherwise; if he finds that it is not obscene, he shall order its return to its owner.6
2
The Missouri Supreme Court sustained the validity of the procedures as applied in this case. 334 S.W.2d 119. The appellants brought this appeal here under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). We postponed consideration of the question of our jurisdiction to the hearing of the case on the merits. 364 U.S. 811, 81 S.Ct. 61, 5 L.Ed.2d 40. We hold that the appeal is properly here, see Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239, and turn to the merits.
3
Appellant, Kansas City News Distributors, managed by appellant, Homer Smay, is a wholesale distributor of magazines, newspapers and books in the Kansas City area. The other appellants operate five retail newsstands in Kansas City. In October 1957, Police Lieutenant Coughlin of the Kansas City Police Department Vice Squad was conducting an investigation into the distribution of allegedly obscene magazines. On October 8, 1957, he visited Distributors' place of business and showed Smay a list of magazines. Smay admitted that his company distributed all but one of the magazines on the list. The following day, October 9, Lieutenant Coughlin visited the five newsstands and purchased one magazine at each.7 On October 10 the officer signed and filed six sworn complaints in the Circuit Court of Jackson County, stating in each complaint that 'of his own knowledge' the appellant named therein, at its stated place of business, 'kept for the purpose of (sale) * * * obscene * * * publications * * *.' No copy of any magazine on Lieutenant Coughlin's list, or purchased by him at the newsstands, was filed with the complaint or shown to the circuit judge. The circuit judge issued six search warrants authorizing, as to the premises of the appellant named in each, 'any peace officer in the State of Missouri * * * (to) search the said premises * * * within 10 days after the issuance of this warrant by day or night, and * * * seize * * * (obscene materials) and take same into your possession * * *.'
4
All of the warrants were executed on Cotober 10, but by different law enforcement officers. Lieutenant Coughlin with two other Kansas City police officers, and an officer of the Jackson County Sheriff's Patrol, executed the warrant against Distributors. Distributors' stock of magazines runs 'into hundreds of thousands * * * (p)robably closer to a million copies.' The officers examined the publications in the stock on the main floor of the establishment, not confining themselves to Lieutenant Coughlin's original list. They seized all magazines which '(i)n our judgment' were obscene; when an officer thought 'a magazine * * * ought to be picked up' he seized all copies of it. After three hours the examination was completed the the magazines seized were 'hauled away in a truck and put on the 15th floor of the courthouse.' A substantially similar procedure was followed at each of the five newsstands. Approximately 11,000 copies of 280 publications, principally magazines but also some books and photographs, were seized at the six places.8
5
The circuit judge fixed October 17 for the hearing, which was later continued to October 23. Timely motions were made by the appellants to quash the search warrants and to suppress as evidence the property seized, and for the immediate return of the property. The motions were rested on a number of grounds but we are concerned only with the challenge to the application of the procedures in the context of h e protections for free speech and press assured against state abridgement by the Fourteenth Amendment.9 Unconstitutionality in violation of the Fourteenth Amendment was asserted because the procedures as applied (1) allowed a seizure by police officers 'without notice or any hearing afforded to the movants prior to seizure for the purpose of determining whether or not these * * * publications are obscene * * *,' and (2) because they 'allowed police officers and deputy sheriffs to decide and make a judicial determination after the warrant was issued as to which * * * magazines were * * * obscene * * * and were subject to seizure, impairing movants' freedom of speech and publication.' The circuit judge reserved rulings on the motions and heard testimony of the police officers concerning the events surrounding the issuance and execution of the several warrants. On December 12, 1957, the circuit judge filed an unreported opinion in which he overruled the several motions and found that 100 of the 280 seized items were obscene. A judgment thereupon issued directing that the 100 items, and all copies thereof, 'shall be retained by the Sheriff of Jackson County * * * as necessary evidence for the purpose of possible criminal prosecution or prosecutions, and, when such necessity no longer exists, said Sheriff * * * shall publicly destroy the same by burning within thirty days thereafter'; it ordered further that the 180 items not found to be obscene, and all copies thereof, 'shall be returned forthwith by the Sheriff * * * to the rightful owner or owners * * *.'
I.
6
The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new. Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power. See generally Siebert, Freedom of the Press in England, 1476—1776; Hanson, Government and the Press, 1695—1763. It was a principal instrument for the enforcement of the Tudor licensing system. The Stationers' Company was incorporated in 1557 to help implement that system and was empowered 'to make search whenever it shall please them in any place, shop, house, chamber, or building or any printer, binder or bookseller whatever within our kingdom of England or the dominions of the same of or for any books or things printed, or to be printed, and to seize, take hold, burn, or turn to the proper use of the foresaid community, all and several those books and things which are or shall be printed contrary to the form of any statute, act, or proclamation, made or to be made * * *.'10
7
An order of counsel confirmed and expanded the Company's power in 1566,11 and the Star Chamber reaffirmed it in 1586 by a decree 'That it shall be lawful for the wardens of the said Company for the time being or any two of the said Company thereto deputed by the said wardens, to make search in all workhouses, shops, warehouses of printers, booksellers, bookbinders, or where they shall have reasonable cause of suspicion, and all books (etc.) * * * contrary to * * * these present ordinances to stay and take to her Majesty's use * * *.'12 Books thus seized were taken to Stationers' Hall where they were inspected by ecclesiastical officers, who decided whether they should be burnt. These powers were exercised under the Tudor censos hip to suppress both Catholic and Puritan dissenting literature.13
8
Each succeeding regime during turbulent Seventeenth Century England used the search and seizure power to suppress publications. James I commissioned the ecclesiastical judges comprising the Court of High Commission 'to enquire and search for * * * all heretical, schismatical and seditious books, libels, and writings, and all other books, pamphlets and partraitures offensive to the state or set forth without sufficient and lawful authority in that behalf, * * * and the same books (etc.) and their printing-presses themselves likewise to seize and so to order and dispose of them * * * as they may not after serve or be employed for any such unlawful use * * *.'14 The Star Chamber decree of 1637, re-enacting the requirement that all books be licensed, continued the broad powers of the Stationers' Company to enforce the licensing laws.15 During the political overturn of the 1640's Parliament on several occasions asserted the necessity of a broad search and seizure power to control printing. Thus an order of 1648 gave power to the searchers 'to search in any house or place where there is just cause of suspicion, that Presses are kept and employed in the printing of Scandalous and lying Pamphlets, * * * (and) to seize such scandalous and lying pamphlets as they find upon search * * *.'16 The Restoration brought a new licensing act in 1662. Under its authority 'messengers of the press' operated under the secretaries of state, who issued executive warrants for the seizure of persons and papers. These warrants, while sometimes specific in content, often gave the most general discretionary authority. For example, a warrant to Roger L'Estrange, the Surveyor of the Press, empowered him to 'seize all seditious books and libels and to apprehend the authors, contrivers, printers, publishers, and dispersers of them,' and to 'search any house, shop, printing room, chamber, warehouse, etc. for seditious, scandalous or unlicensed pictures, books, or papers, to bring away or deface the same, and the letter press, taking away all the copies * * *.'17 Another warrant gave L'Estrange power to 'search for & seize authors, contrivers, printers, * * * publishers, dispensers, & concealers of treasonable, schismaticall, seditious or unlicensed books, libells, pamphlets, or papers * * * together with all copys exemplaryes of such Books, libells, pamphlets or paper as aforesaid.'18
9
Although increasingly attacked, the licensing system was continued in effect for a time even after the Revolution of 1688 and executive warrants continued to issue for the search for and seizure of offending books. The Stationers' Company was also ordered 'to make often and diligent searches in all such places you or any of you shall know or have any probable reason to suspect, and to seize all unlicensed, scandalous books and pamphlets * * *.'19 And even when the device of prosecution for seditious libel replaced licensing as the principal governmental control of the press,20 it too was enforced with the aid of general warrants—authorizing either the arrest of all persons connected with the publication of a particular libel and the search of their premises, or the seizure of all the papers of a named person alleged to be connected with the publication of a libel.21
10
Enforcement through general warrants was finally judicially condemned in England. This was the consequence of the struggle of the 1760's between the Crown and the opposition press led by John Wilkes, author and editor of the North Briton. From this struggle came the great case of Entick v. Carrington, 19 How.St.Tr. 1029, which this Court has called 'one of the landmarks of English liberty.' Boyd v. United States, 116 U.S. 616, 626, 6 S.Ct. 524, 530, 29 L.Ed. 746. A warrant based on a charge of seditious libel issued for the arrest of Entick, writer for an opposition paper, and for the seizure of all his papers. The officers executing the warrant ransacked Entick's home for four hours and carted away great quantities of books and papers. Lord Camden declared the general warrant for the seizure of papers contrary to the common law, despite its long history. Camden said: 'This power so assumed by the secretary of state is an execution upon all the party's papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper.' At 1064. Camden expressly dismissed the contention that such a warrant could be justified on the grounds that it was 'necessary for the ends of government to lodge such a power with a state officer; and * * * better to prevent the publication before than to punish the offender afterwards.' At 1073. In Wilkes v. Wood, 19 How.St.Tr. 1153, Camden also condemned the general warrants employed against John Wilkes for his publication of issue No. 45 of the North Briton. He declared that these warrants, calling for the arrest of unnamed persons connected with the alleged libel and seizure of their papers, amounted to a 'discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.' Id., 1167.22
11
This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. For the serious hazard of suppression of innocent expression inhered in the discretion confided in the officers authorized to exercise the power.
II.
12
The question here is whether the use by Missouri in this case of the search and seizure power to suppress obscene publications involved abuses inimical to protected expression. We held in Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498,23 that 'obscenity is not within the area of constitutionally protected speech or press.' But in Roth itself we expressly recognized the complexity of the test of obscenity fashioned in that case and the vital necessity in its application of safeguards to prevent denial of 'the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.' Id., 354 U.S. at page 488, 77 S.Ct. at page 1311. We have since held that a State's power to suppress obscenity is limited by the constitutional protections for free expression. In Smith v. People of State of California, 361 U.S. 147, 155, 80 S.Ct. 215, 220, 4 L.Ed.2d 205, we said, 'The existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power.' inasmuch as 'our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene.' Id., 361 U.S. at page 152, 80 S.Ct. at page 218. We therefore held that a State may not impose absolute criminal liability on a bookseller for the possession of obscene material, even if it may dispense with the element of scienter in dealing with such evils as impure food and drugs. We remarked the distinction between the cases: 'There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller.' Id., 361 U.S. at pages 152—153, 80 S.Ct. at page 218. The Missouri Supreme Court's assimilation of obscene literature to gambling paraphernalia or other contraband for purposes of search and seizure does not therefore answer the appellants' constitutional claim, but merely restates the issue whether obscenity may be treated in the same way. The authority to the police officers under the warrants issued in this case, broadly to seize 'obscene * * * publications,' poses problems not raised by the warrants to seize 'gambling implements' and 'all intoxicating liquors' involved in the cases cited by the Missouri Supreme Court. 334 S.W.2d at page 125. For the use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications. '* * * (T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. * * * The separation of legitimate from illegitimate speech calls for * * * sensitive tools * * *.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460.24 It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenitya § here involved without regard to the possible consequences for constitutionally protected speech.
13
We believe that Missouri's procedures as applied in this case lacked the safeguards which due process demands to assure nonobscene material the constitutional protection to which it is entitled. Putting to one side the fact that no opportunity was afforded the appellants to elicit and contest the reasons for the officer's belief, or otherwise to argue against the propriety of the seizure to the issuing judge, still the warrants issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene. The warrants gave the broadest discretion to the executing officers; they merely repeated the language of the statute and the complaints, specified no publications, and left to the individual judgment of each of the many police officers involved the selection of such magazines as in his view constituted 'obscene * * * publications.' So far as appears from the record, none of the officers except Lieutenant Coughlin had previously examined any of the publications which were subsequently seized. It is plain that in many instances, if not in all, each officer actually made ad hoc decisions on the spot and, gauged by the number of publications seized and the time spent in executing the warrants, each decision was made with little opportunity for reflection and deliberation. As to publications seized because they appeared on the Lieutenant's list, we know nothing of the basis for the original judgment that they were obscene. It is no reflection on the good faith or judgment of the officers to conclude that the task they were assigned was simply an impossible one to perform with any realistic expectation that the obscene might be accurately separated from the constitutionally protected. They were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity. See generally 1 Chafee, Government and Mass Communications, pp. 200—218. In consequence there were suppressed and withheld from the market for over two months 180 publications not found obscene.25 The fact that only one-third of the publications seized were finally condemned strengthens the conclusion that discretion to seize allegedly obscene materials cannot be confided to law enforcement officials without greater safeguards than were here operative. Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees.26
III.
14
The reliance of the Missouri Supreme Court upon Kingsley Books, Inc., v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, is misplaced. The differences in the procedures under the New York statute upheld in that case and the Missouri procedures as applied here are marked. They amount to the distinction between 'a 'limited injunctive remedy,' under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene,' Kingsley Books, supra, 354 U.S. at page 437, 77 S.Ct. at page 1326, and a scheme which in operation inhibited the circulation of publications indiscriminately because of the absence of any suc safeguards. First, the New York injunctive proceeding was initiated by a complaint filed with the court which charged that a particular named obscene publication had been displayed, and to which were annexed copies of the publication alleged to be obscene.27 The court, in restraining distribution pending final judicial determination of the claim, thus had the allegedly obscene material before it and could exercise an independent check on the judgment of the prosecuting authority at a point before any restraint took place. Second, the restraints in Kingsley Books, both temporary and permanent, ran only against the named publication; no catchall restraint against the distribution of all 'obscene' material was imposed on the defendants there, comparable to the warrants here which authorized a mass seizure and the removal of a broad range of items from circulation.28 Third, Kingsley Books does not support the proposition that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity, irrespective of whether or not the material is legally obscene. This Court expressly noted there that the State was not attempting to punish the distributors for disobedience of any interim order entered before hearing. The Court pointed out that New York might well construe its own law as not imposing any punishment for violation of an interim order were the book found not obscene after due trial. 354 U.S. at page 443, note 2, 77 S.Ct. at page 1329. But there is no doubt that an effective restraint—indeed the most effective restraint possible—was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the police could lay their hands were physically removed from the newsstands and from the premises of the wholesale distributor. An opportunity comparable to that which the distributor in Kingsley Books might have had to circulate the publication despite the interim restraint and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public's opportunity to obtain the publications was thus determined by the distributor's readiness and ability to outwit the police by obtaining and selling other copies before they in turn could be seized. In addition to its unseemliness, we do not believe that this kind of enforced competition affords a reasonable likelihood that nonobscene publications, entitled to constitutional protection, will reach the public. A distributor may have every reason to believe that a publication is constitutionally protected and will be so held after judicial hearing, but his belief is unavailing as against the contrary judgment of the police officer who seizes it from him.29 Finally, a subdivision of the New York statute in Kingsley Books required that a judicial decision on the merits of obscenity be made within two days of trial, which in turn was required to be within one day of the joinder of issue on the request for an injunction.30 In contrast, the Missouri statutory scheme drawn in question here has no limitation on the time within which decision must be made, only a provision for rapid trial of the issue of obscenity. And in fact over two months elapsed between seizure and decision.31 In these circumstances the restraint on the circulation of publications was far more thoroughgoing and drastic than any restraint upheld by this Court in Kingsley Books.
15
Mass seizure in the fashion of this case was thus effected without any safeguards to protect legitimate expression. The judgment of the Missouri Supreme Court sustaining the condemnation of the 100 publications therefore cannot be sustained. We have no occasion to reach the question of the correctness of the finding that the publications are obscene. Nor is it necessary for us to decide in this case whether Missouri lacks all power under its statutory scheme to seize and condemn obscene material. Since a violation of the Fourteenth Amendment infected the proceedings, in order to vindicate appellants' constitutional rights the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
16
Judgment reversed and cause remanded.
17
Mr. Justice BLACK, whom Mr. Justice DOUGLAS joins, concurring.
18
The warrant used to search appellants' premises made no attempt specifically to describe the 'things to be seized,' as the Fourth Amendment requires. As the historical summary in the Court's opinion demonstrates, a major purpose of adopting that amendment was to bar the Federal Government from using precisely this kind of general warrant to support 'unreasonable searches and seizure' of the 'papers' and 'effects' of persons having possession of them. See especially Entick v. Carrington, 19 Howell's State Trials 1029, at 1073—1076; Boyd v. United States, 116 U.S. 616, 624—630, 6 S.Ct. 524, 528—530, 29 L.Ed. 746; Frank v. State of Maryland, 359 U.S. 360, 374, 79 S.Ct. 804, 812, 3 L.Ed.2d 877 (dissenting opinion). It is my view that the Fourteenth Amendment makes the Fourth Amendment applicable to the States to the full extent of its terms, just as it applies to the Federal Government. See Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (dissenting opinion). Only last Term we said that in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, 'it was unequivocally determined by a unanimous Court that the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.' Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 1442, 4 L.Ed.2d 1669. And in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, it is said that '(s)ince the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.' Since the State has used a general warrant in this case in violation of the prohibitions of the Fourth and Fourteenth Amendments, I concur in reversal of the judgment.
1
These procedures are separate from and in addition to the State's criminal statutes. See State v. Mac Sales Co., Mo.App., 263 S.W.2d 860. The criminal statutes are Mo.Rev.Stat. §§ 563.270, 563.280, 563.290; see also § 563.310, V.A.M.S.
2
Mo.Rev.Stat. § 542.380, V.A.M.S. in pertinent part provides:
'Upon complaint being made, on oath, in writing, to any officer authorized to issue process for the apprehension of offenders, that any of the property or articles herein named are kept within the county of such officer, if he shall be satisfied that there is reasonable ground for such complaint, shall issue a warrant to the sheriff or any constable of the county, directing him to search for and seize any of the following property or articles:
'(2) Any of the following articles, kept for the purpose of being sold, published, exhibited, given away or otherwise distributed or circulated, viz.: obscene, lewd, licentious, indecent or lascivious books, phamphlets, ballads, papers, drawings, lithographs, engravings, pictures, models, casts, prints or othr articles or publications of an indecent, immoral or scandalous character, or any letters, handbills, cards, circulars, books, pamphlets or advertisements or notices of any kind giving information, directly or indirectly, when, where, how or of whom any of such things can be obtained.' These procedures also govern seizure and condemnation of gambling paraphernalia, contraceptive devices, and tools and other articles used to manufacture or produce such items. Fraudulent, forged, and counterfeited writings and other articles, and the instruments used to make them, are also declared contraband and subject to seizure. § 542.440.
3
Missouri Supreme Court Rule 33.01 of the Rules of Criminal Procedure provides:
'(a) If a complaint in writing be filed with the judge or magistrate of any court having original jurisdiction to try criminal offenses stating that personal property * * * the seizure of which under search warrant is now or amay hereafter be authorized by any statute of this State, is being held or kept at any place or in any building * * * within the territorial jurisdiction of such judge or magistrate, and if such complaint be verified by the oath or affirmation of the complainant and states such facts positively and not upon information or belief; or if the same be supported by written affidavits verified by oath or affirmation stating evidential facts from which such judge or magistrate determines the existence of probable cause, then such judge or magistrate shall issue a search warrant directed to any peace officer commanding him to search the place therein described and to seize and bring before such judge or magistrate the personal property therein described.
'(b) The complainant and the warrant issued thereon must contain a description of the personal property to be searched for and seized and a description of the place to be searched, in sufficient detail and particularity to enable the officer serving the warrant to readily ascertain and identify the same.'
4
Mo.Rev.Stat. § 542.400, V.A.M.S. provides:
'The judge or magistrate issuing the warrant shall set a day, not less than five days nor more than twenty days after the date of such service and seizure, for determining whether such property is the kind of property mentioned in section 542.380, and shall order the officer having such property in charge to retain possession of the same until after such hearing. Written notice of the date and place of such hearing shall be given, at least five days before such date, by posting a copy of such notice in a conspicuous place upon the premises in which such property is seized, and by delivering a copy of such notice to any person claiming an interest in such property, whose name may be known to the person making the complaint or to the officer issuing or serving such warrant, or leaving the same at the usual place of abode of such person with any member of his family or household above the age of fifteen years. Such notice shall be signed by the magistrate or judge or by the clerk of the court of such judge.'
5
Mo.Rev.Stat. § 542.410, V.A.M.S. provides:
'Rights of property owner.—The owner or owners of such property may appear at such hearing and defend against the charges as to the nature and use of the property so seized, and such judge or magistrate shall determine, from the evidence produced at such hearing, whether the property is the kind of property mentioned in section 542.380.'
6
Mo.Rev.Stat. § 542.420, V.A.M.S. provides:
'Disposition of property.—If the judge or magistrate hearing such cause shall determine that the property or articles are of the kind mentioned in section 542.380, he shall cause the same to be publicly destroyed, by burning or otherwise, and if he find that such property is not of the kind mentioned, he shall order the same returned to its owner. If it appears that it may be necessary to use such articles or property as evidence in any criminal prosecution, the judge or magistrate shall order the officer having possession of them to retain such possessionu ntil such necessity no longer exists, and they shall neither be destroyed nor returned to the owner until they are no longer needed as such evidence.'
7
He bought a copy of the same magazine at three of the stands, a copy of another edition of this magazine at a fourth stand, and a copy of one other magazine at the fifth stand.
8
The publications seized included so-called 'girlie' magazines, nudist magazines, treatises and manuals on sex, photography magazines, cartoon and joke books and still photographs.
9
Because of the result which we reach, it is unnecessary to decide other constitutional questions raised by the appellants, (1) whether the Missouri statutes are invalid on their face as authorizing an unconstitutional censorship and previous restraint of publications; (2) whether the Missouri courts applied an unconstitutional test of obscenity; and (3) whether the publications condemned are obscene under the test of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
10
1 Arber, Transcript of the Registers of the Company of Stationers of London, 1554—1640 A.D., p. xxxi.
11
Elton, The Tudor Constitution, p. 106.
12
Elton, supra, pp. 182—183.
13
Siebert, supra, pp. 83, 85—86, 97.
14
Siebert, supra, p. 139, citing Pat.Roll, 9, Jac.I, Pt. 18; id., II, Pt. 15.
15
4 Arber, supra, pp. 529—536.
16
Siebert, supra, 214—215, note 72.
17
Siebert, supra, p. 254, citing Minute Entry Book 5, p. 177.
18
Siebert, supra, p. 256, citing Entry Book, Chas. II, 1664, Vol. 21, p. 21; also Vol. 16, p. 130.
19
Cal.St.P., Dom.Ser., 1690—1691, p. 74.
20
One of the primary objections to licensing was its enforcement through search and seizure. The House of Commons' list of reasons why thel icensing act should not be renewed included: 'Because that Act subjects all Mens Houses, as well Peers as Commoners, to be searched at any Time, either by Day or Night, by a Warrant under the Sign Manual, or under the Hand of One of the Secretaries of State, directed to any Messenger, if such Messenger shall upon probable Reason suspect that there are any unlicensed Books there; and the Houses of all Persons free of the Company of Stationers are subject to the like Search, on a Warrant from the Master and Wardens of the said Company, or any One of them.' 15 Journal of the House of Lords, April 18, 1695, p. 546.
21
Siebert, supra, pp. 374—376.
22
A contemporary London pamphlet summed up the widespread indignation against the use of the general warrant for the seizure of papers: 'In such a party-crime, as a public libel, who can endure this assumed authority of taking all papers indiscriminately? * * * where there is even a charge against one particular paper, to seize all, of every kind, is extravagant, unreasonable and inquisitorial. It is infamous in theory, and downright tyranny and despotism in practice.' Father of Candor, A Letter Concerning Libels, Warrants, and the Seizure of Papers, p. 48 (2d ed. 1764, J. Almon printer).
See generally Lasson, The History and Development of the Fourth Amendment, pp. 42—50; Hanson, Government and the Press, 1695—1763, pp. 29—32, 49—50. An even broader form of general warrant was the writ of assistance, which met such vigorous opposition in the American Colonies prior to the Revolution. Unlike the warrants of the North Briton affair and Entick v. Carrington, which were at least concerned with a particular designated libel, these writs empowered the executing officer to seize any illegally imported goods or merchandise. Moreover, in additio to authorizing search without limit of place, they had no fixed duration. In effect, complete discretion was given to the executing officials; in the words of James Otis, their use placed 'the liberty of every man in the hands of every petty officer.' Tudor, Life of James Otis (1823), p. 66. See Lasson, supra, pp. 51 78.
23
This holding applied also to the obscenity question raised under the Fourteenth Amendment in Alberts v. State of California, decided in the same opinion.
24
Lord Camden in Entick v. Carrington recognized that there was no justification for the abuse of the search and seizure power in suppressing seditious libel, even if the view were accepted that 'men ought not to be allowed to have such evil instruments in their keeping.' 19 How.St.Tr., at 1072. He said, 'If (libels may be seized), I am afraid, that all the inconveniences of a general seizure will follow upon a right allowed to seize a part. The search in such cases will be general, and every house will fall under the power of a secretary of state to be rummaged before proper conviction.' Id., at 1071.
25
Among the publications ordered returned were such titles as 'The Dawn of Rational Sex Ethics,' 'Sex Symbolism,' 'Notes on Cases of Sexual Suppression,' 'Your Affections, Emotions and Feel-
ings,' 'Sexual Impotence, Its Causes and Treatments,' 'The Psychology of Sex Life,' 'Freud on Sleep and Sexual Dreams,' 'The Determination of Sex,' 'Sex and Psychoanalysis,' 'Artificial Insemination,' 'Syphilis, A Treatise for the American Public,' 'What You Shol d Know About Sexual Impotency,' 'Variations in Sexual Behavior,' 'Sex Life in Marriage,' 'Pyschopathia Sexualis,' 'The Sex Technique in Marriage,' 'Sexual Deviations,' 'Sex Practice in Later Years,' and 'Marriage, Sex, and Family Problems.'
26
English practice in such cases has placed greater restraint on the seizure power. Seizure of obscene material, as a prelude to condemnation, was authorized there by Lord Campbell's Obscene Publications Act of 1857, 20 & 21 Vict., c. 83. As originally proposed, that statute would have allowed search for and seizure of obscene matter either under authority granted by magistrates or on warrants granted by the Chief Commissioner of Police. Moreover, the affidavit for obtaining a warrant would have been required to contain merely the statement that the person making it had reasonable ground for suspicion that obscene publications were kept on the premises to be searched. See 146 Hansard's Parliamentary Debates, 3d Series, p. 866. These provisions met vigorous opposition in Parliament. A number of members emphasized that the difficulty of defining obscenity made broad search powers in police hands extremely dangerous. See id., pp. 330—332, 1360—1362, 147 Hansard, supra, pp. 1863—1864. As a result, amendments were adopted removing the grant of authority to the police commissioner to authorize a search and seizure, requiring greater specificity in the allegations before a warrant could be issued, and providing that warrants could issue only for the seizure of books the publication of which would constitute a common-law misdemeanor. Lord Lyndhurst, draftsman of these amendments, explained: 'I have now provided that the person shall swear that he has reason to believe, and that he does believe, that there are such publications in
such a place, and shall further state to the magistrate the reasons which lead to that belief. Nor does it stop there. The most material Amendment is, that he must state what the publications are, and that they are of such a nature that, if published, the party publishing them will be guilty of a misdemeanour. The magistrate must also be satisfied that the case is a proper one for a prosecution * * *.' 146 Hansard, supra, at p. 1360. The Lord Chancellor summarized the effect of the changes: 'As the Bill now stood, these search-warrants would only be granted after great precautions * * *.' Id., p. 1362.
According to a recent summary of procedures to obtain a warrant under that Act, a police officer would ordinarily buy copies of a work he suspected of obscenity. They would be examined by the police and sent to the Director of Public Prosecutions. The latter would return them with advice as to whether a warrant should be applied for. If a decision were made to seek a warrant, the publications would be laid before a magistrate with the sworn affidavit of the officer, in order that he might be satisfied that they were of the character necessary to justify seizure. See Memorandum of the Association of Chief Police Officers of England and Wales, Minutes of Evidence Taken Before the Select Committee of the House of Commons on the Obscene Publications Bill, 1956 1957, pp. 132—136. See also, id., p. 23.
The Act was replaced by the Obscene Publications Act of 1959, 7 & 8 Eliz. II, c. 66. See 23 Mod.L.Rev. 285.
27
The feasibility of particularization in complaint and warrant in a case such as the present is apparent, since the publications were sold on newsstands distributing to the public. Compare Lord Camden's remark in Entick v. Carrington,d irected to the contention that a general warrant might be justifiable as a means of uncovering evidence of crime: 'If * * * a right of search for the sake of discovering evidence ought in any case to be allowed, this crime (seditious libel) above all others ought to be excepted, as wanting such a discovery less than any other. It is committed in open daylight, and in the face of the world; * * *.' 19 How.St.Tr., at 1074.
28
The trial judge in Kingsley Books refused to enjoin the distribution of future issues of the publication in question, stating: '(u)nless the work be before the court at the time of the hearing at which the injunction is sought, it is inappropriate to make a judicial determination with respect to it. In respect of this feature of the case, the plaintiff seeks a likely trespass upon a constitutionally protected area, and the court must reject that prayer.' Burke v. Kingsley Books, Inc., 208 Misc. 150, 168 169, 142 N.Y.S.2d 735, 751. Cf. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357.
29
Cf. Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.
Blackstone's often-quoted formulation of the principle of freedom of the press, though restricted to the prohibition of 'previous restraints upon publications,' nevertheless acknowledged the importance of an adjudicatory procedure as a protection against the suppression of inoffensive publications. He wrote: 'to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order * * *.' 4 Commentaries, pp. 151—152. (Emphasis added.) Compare Butler, J., dissenting in Near v. State of Minnesota ex rel. Olson, supra, 283 U.S. at page 723, 51 S.Ct. at page 633: 'The decision of the Court in this case declares Minnesota and every other state powerless to restrain by injunction the business of publishing and circulating among the people malicious, scandalous and defamatory periodicals that in due course of judicial procedure has been adjudged to be a public nuisance.' (Emphasis added.)
30
This provision was not directly implicated in Kingsley Books because the parties had waived the provision for immediate trial.
31
Compare the objection of the House of Commons to renewal of licensing: 'Because that Act appoints no Time wherein the Archbishop, or Bishop of London, shall appoint a learned Man, or that One or more of the Company of Stationers shall go to the Customhouse, to view imported Books; so that they or either of them may delay it till the Importer may be undone, by having so great a Part of his Stock lie dead * * *.' 15 Journals of the House of Lords, April 18, 1695, p. 546.
| 01
|
368 U.S. 20
82 S.Ct. 5
7 L.Ed.2d 1
William J. ROPER, Petitioner,v.UNITED STATES et al.
No. 16.
Argued Oct. 12, 16, 1961.
Decided Nov. 6, 1961.
Sidney H. Kelsey, Norfolk, Va., for petitioner.
Leavenworth Colby, Washington, D.C., for respondent, United States.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner, a longshoreman, brought this libel in personam against the United States pursuant to the Suits in Admiralty Act, § 2, 41 Stat. 525, 46 U.S.C. § 742, 46 U.S.C.A. § 742.1 Claiming injuries suffered while aboard a government ship removing grain to an elevator, petitioner sought recovery on the grounds of unseaworthiness and negligence. The District Court dismissed the libel after finding that there was no negligence, and that since the ship in fact was not in navigation there was no warranty of seaworthiness. 170 F.Supp. 763. This dismissal was affirmed by a divided Court of Appeals, 282 F.2d 413, and a petition for certiorari requesting review of the seaworthiness issue was granted. 365 U.S. 802, 81 S.Ct. 466, 5 L.Ed.2d 459. We now affirm the judgment below.
2
The S. S. Harry Lane was a liberty ship of World War II origin, which was deactivated from service and 'mothballed' in 1945. In this process her supplies, stores, nautical instruments, cargo gear and tackle were removed; her pipes and machinery were drained and prepared for storage; and her rudder, tail shaft and propeller were secured. As a result of such action the ship lost her Coast Guard safety certification as well as her license to operate, both of which were requisite to a vessel in navigation. Indeed, the trial court found that 'admittedly' reactivation of the ship would have required a major overhaul.
3
In 1954 the Government was confronted with an urgent need of storage facilities for the country's surplus grain, and a decision was made to utilize as warehouse space the holds of some of the deactivated liberty ships. The ships were not reactivated for navigation nor used for transportation purposes, but were utilized solely as granaries for the storage of the Government's grain. Pursuant thereto, the use of the S. S. Harry Lane was covered by a general storage agreement between the Continental Grain Company and the Commodity Credit Corporation, and it was towed to loading facilities, filled with grain, and returned to the 'dead fleet' of some 360 vessels, where it remained for two years.
4
In September 1956 a sale was made of the grain stored in this ship, and she was towed back to the grain elevator for the unloading operation. As in the earlier movement, no repairs or structural changes preparatory to activating the ship were made; nor was there any attempt to obtain a safety certificate or a license to operate as a vessel in navigation, and none was issued. The movement was by tug, with a licensed riding master and six linemen stationed aboard the dead vessel. The linemen were discharged from the vessel after she was secured to her berth at the grain elevator, the riding master alone remaining to guard the vessel. The line handlers did not sign on as seamen for the vessel, and the tugboat captain was 'in charge of the move from the Fleet down to the berth' with the riding master 'subject to the orders of the tugboat captain.'
5
The unloading operation was carried out by Continental Grain Company. The grain was removed by a 'marine leg,' a large shore-based mechanism containing a conveyor belt which lifts grain from the ship's hold into the adjacent grain elevator leased by Continental. The marine leg was owned and maintained by Continental, and their employee operated it from a control house in response to signals from longshoremen in the hold. When the grain level dropped to a certain depth, the balance was drawn onto the belt by 'grain shovels'—plow-like devices attached by rope to winches in the leg. These shovels were operated by longshoremen employed by a stevedoring company, which had contracted with Continental to aid in the unloading. Petitioner, the foreman of the longshoreman crew, was injured when a latently defective part of the marine leg (a block through which one of the shovel ropes ran) broke and struck him. The entire unloading operation was directed and controlled by Continental and the stevedoring company, and the riding master was without power to supervise the work or inspect the equipment.
6
The test for determining whether a vessel is in navigation is the 'status of the ship,' West v. United States, 1959, 361 U.S. 118, 122, 80 S.Ct. 189, 192, 4 L.Ed.2d 161. This is a question of fact, Butler v. Whiteman, 1958, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754, and consequently reversible only upon a showing of clear error. Admittedly the S. S. Harry Lane was withdrawn from navigation in 1945. The issue presented is therefore whether events subsequent to 1945 altered this status. In 1954 the function of the ship was modified. However, she was not converted to a self-propelled, self-directed cargo vessel. Nor was she even prepared for use as a barge to transport cargo from one location to another. In point of fact it would be more accurate to note that the ship itself was not converted to any navigational use. While its hold was utilized as a granary or warehouse, the vessel ipso facto was not reactivated for service in navigation.
7
A second aspect of the ship's history since 1954 is the movement between the dead fleet and the grain elevator. This movement was by tug without assistance from the ship's motive or directional equipment which, indeed, was not in the least usable. The men aboard were not signed on as seamen, and the entire operation was directed and controlled by the tug captain. Unlike a barge, the S. S. Harry Lane was not moved in order to transport commodities from one location to another. It served as a mobile warehouse which was filled and then moved out of the way to perform its function of storing grain until needed, at which time it was returned and unloaded.
8
In light of the above circumstances, we cannot say as a matter of law that the S. S. Harry Lane had been converted into a vessel in navigation, and that the findings of the trial court were clearly erroneous.2
9
Since we are unwilling to upset the trial court's factual determination that the S. S. Harry Lane was not a vessel in navigation, it follows that there was no warranty of the ship's seaworthiness. West v. United States, supra; Kissinger v. United States, D.C.1959, 176 F.Supp. 828.3 This limitation is analogous to that applied in libels under the Jones Act, 46 U.S.C.A. § 688, where it has long been held that recovery is precluded if the ship involved is not a vessel in navigation. Desper v. Starved Rock Ferry Co., 1952, 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205; Hawn v. American S. S. Co., 2 Cir., 1939, 107 F.2d 999.
10
This disposition of the case makes it unnecessary for us to pass upon the remaining question, i.e., whether a shore-based marine leg is within the warranty of seaworthiness in the circumstances here disclosed.
11
Affirmed.
12
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
13
For the reasons stated by Judge Sobeloff in the Court of Appeals, I believe this ship at the time of the accident was not a 'dead ship' but 'a vessel in navigation,' because it was 'being actually used as a barge, and transporting a cargo.' 282 F.2d 413, 419.
1
Other parties, not concerned with our disposition, were impleaded.
2
For cases involving similar facts and to the same effect see Hawn v. American S.S. Co., 2 Cir., 1939, 107 F.2d 999; Kissinger v. United States, D.C.E.D.N.Y. 1959, 176 F.Supp. 828; Krolczyk v. Waterways Navigation Co., D.C.E.D.Mich. 1957, 151 F.Supp. 873. Lawlor v. Socony-Vacuum Oil Co., 2 Cir., 1960, 275 F.2d 599, is not contra. There minor repairs were underway on an active ship with a full crew aboard.
3
The view that a vessel not in navigation extends no warranty has often been expressed in the more familiar context of to whom does the warranty extend. E.g., Union Carbide Corp. v. Goett, 4 Cir., 1958, 256 F.2d 449. Implicit within such cases is the reasoning that those working on vessels not in navigation are not seamen (or doing seamen's work) and consequently not among those employees protected by the warranty of seaworthiness.
| 78
|
368 U.S. 25
82 S.Ct. 1
7 L.Ed.2d 5
Keith MARTIN, Appellant,v.Herbert WALTON, as Probate Judge of Johnson County, Kansas.
No. 30.
Argued Oct. 17, 1961.
Decided Nov. 6, 1961.
Rehearing Denied Dec. 11, 1961.
See 368 U.S. 945, 82 S.Ct. 376.
Howard E. Payne, Olathe, Kan., for appellant.
J. Donald Lysaught, Kansas City, Kan., for appellee.
PER CURIAM.
1
The appeal is dismissed for want of a substantial federal question. Upon plenary consideration, we are satisfied that, both on their face and as applied to appellant, Kan.Gen.Stat., 1949, § 7—104, and amended Kan.Sup.Ct. Rules 41 and 54 promulgated by the Supreme Court of Kansas, acting within its competence under state law, are not beyond the allowable range of state action under the Fourteenth Amendment. See, e.g., Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Graves v. State of Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331; Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796; Hitchcock v. Collenberg, 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718; Kovrak v. Ginsburg, 358 U.S. 52, 79 S.Ct. 95, 3 L.Ed.2d 46. We cannot disregard the reasons given by the Kansas Supreme Court for the Rules in question. 187 Kan. 473, 357 P.2d 782. Nor does the fact that the Rules may result in 'incidental individual inequality' make them offensive to the Fourteenth Amendment. Phelps v. Board of Education, 300 U.S. 319, 324, 57 S.Ct. 483, 485, 81 L.Ed. 674.
2
Appeal dismissed.
3
THE CHIEF JUSTICE concurs in the result.
4
Mr. Justice WHITTAKER took no part in the disposition of this case.
5
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
6
If this were a case where an attorney, though a member of the Kansas Bar, practiced law only in Missouri, the reasons for Rules 41 and 54* as declared by the Kansas Supreme Court, would be adequate to sustain them. For we are told by that court that they were designed 'to provide litigants in (Kansas) tribunals with the service of a resident attorney familiar with local rules, procedure and practice and upon whom service may be had in all matters connected with actions or proceedings proper to be served upon an attorney of record.' 187 Kan. 473, 485, 357 P.2d 782, 791.
7
But the facts assumed are not the facts of this case. The facts alleged in the petition for writ of mandamus, which are assumed to be true by the motion to quash, show the following: Petitioner, since 1948, has continuously maintained law offices and had a general practice of law both in Kansas City, Missouri, and in Mission, Kansas, the latter being a suburb of Kansas City, Missouri. Petitioner's home is Mission, Kansas. He is City Attorney for Mission and a member of the Board of Tax Appeals of Kansas. Many of his clients live in one State and work in the other. Their problems involve the laws and procedures of both States. He consults with as many clients in his Kansas office or home as in his Missouri office. About one-half of his earned income is derived from his Kansas practice, a large portion of which consists of practice in the probate court. To use the words of the Kansas Supreme Court, quoted above, petitioner is a 'resident attorney familiar with local rules, procedure and practice and upon whom service may be had in all matters.'
8
Four other factors were mentioned by the Kansas Supreme Court in sustaining these Rules:
9
1. Kansas courts and commissions 'encountered difficulty in procuring the presence of the Kansas licensed attorneys officed in Missouri at the call of * * * (their) dockets.'
10
2. There has been an 'inability of Kansas officed attorneys to procure service on Missouri officed Kansas attorneys without having to proceed to another state.' 3. There has been a 'failure of some Kansas licensed attorneys officed in Missouri to answer calls to appear on matters of urgency.'
11
4. There has been a 'failure of those attorneys to familiarize themselves with the rules of local practice and procedure by reason of their infrequent appearance before the (Kansas) courts and tribunals.' 187 Kan. 473, 482—483, 357 P.2d 782, 790.
12
These four factors, applicable perhaps to 'Kansas licensed attorneys officed in Missouri' (187 Kan., at 482, 357 P.2d, at 790), plainly have no relevancy to petitioner who has an active practice in Kansas. This case is therefore quite different from those where 'incidental individual inequality' (Phelps v. Board of Education, 300 U.S. 319, 324, 57 S.Ct. 483, 485, 81 L.Ed. 674) results from putting many into one class, treating them all alike, and disregarding slight or minor differences among them.
13
If Kansas can deny this lawyer his livelihood, so can Missouri. When Kansas denies him the right to pursue his livelihood, it destroys his competence for reasons that have no relation to competency. States have great leeway in making classifications, in providing general rules, in differentiating evils by broad lines or by narrow ones. Where, however, a State declares what purpose the law has, no room is left to conceive of any other purpose it may serve. See Allied Stores of Ohio, Inc., v. Bowers, 358 U.S. 522, 530, 79 S.Ct. 437, 442, 3 L.Ed.2d 480. A law, fair on its face, may be applied in a way that violates the Equal Protection Clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 373—374, 6 S.Ct. 1064, 1072, 1073, 30 L.Ed. 220. Here the law as applied has no relation whatsoever to the declared evil at which the law was aimed. It is, therefore, invidious in its application, striking without reason at a citizen's activities which touch several States, as constitutionally they are entitled to do under our federal regime. Cf. Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119.
14
As we said in Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796:
15
'A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. * * * Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory.'
16
Accordingly, the application of these Rules to petitioner causes him to be singled out for discriminatory treatment, even though he has passed the Kansas Bar and is equally as competent as other Kansas lawyers to practice in that State. The fact that an attorney maintains an office and practices law in two States has no 'rational connection' with his 'fitness or capacity to practice law' (Schware v. Board of Bar Examiners, supra, 353 U.S. 239, 77 S.Ct. 756) and does not without more give either State the right to deprive him of his livelihood in light of the requirements of the Equal Protection Clause of the Fourteenth Amendment.
*
Rule 41 provides in relevant part:
'Provided further however, The authority granted to practice law shall not be exercised except as provided under Rule No. 54 infra, when the licensee herein has been admitted to the Bar of another state or territory and is regularly engaged in the practice of law in such other state or territory.'
Rule 54 provides:
'An attorney regularly practicing outside of this state and in good standing as a member of the Bar of the place of his regular practice may be recognized as an attorney by the courts, commissions, and agencies of this state, for any action or proceeding, but only if he has associated with him as attorney of record in such action or proceeding a member of the Bar of this state qualified under the provisions of G.S.1949, 7—104, upon whom service may be had in all matters connected with such action or proceeding proper to be served upon an attorney of record.'
| 78
|
368 U.S. 52
82 S.Ct. 157
7 L.Ed.2d 114
Charles Clarence HAMILTON, Petitioner,v.STATE OF ALABAMA.
No. 32.
Argued Oct. 17, 1961.
Decided Nov. 13, 1961.
Constance B. Motley, New York City, for petitioner.
George D. Mentz, Montgomery, Ala., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a capital case, petitioner having been sentenced to death on a count of an indictment charging breaking and entering a dwelling at night with intent to ravish.1 Petitioner appealed, claiming he had been denied counsel at the time of arraignment. The Alabama Supreme Court, although stating that the right to counsel under the State and Federal Constitutions included the right to counsel at the time of arraignment, did not reach the merits of the claim because to do so would require impeaching the minute entries at the trial,2 which may not be done in Alabama on an appeal. 270 Ala. 184, 116 So.2d 906. When petitioner sought certiorari here, Alabama responded saying that his remedy to attack the judgment with extrinsic evidence was by way of coram nobis. We denied certiorari. 363 U.S. 852, 80 S.Ct. 1638, 4 L.Ed.2d 1737.
2
Petitioner thereupon proceeded by way of coram nobis in the Alabama courts. The Supreme Court of Alabama, while recognizing that petitioner had a right under state law, 15 Ala.Code § 318, to be represented by counsel at the time of his arraignment, denied relief because there was no showing or effort to show that petitioner was 'disadvantaged in any way by the absence of counsel3 when he interposed his plea of not guilty.' 271 Ala. 88, 93, 122 So.2d 602, 607. The case is here on certiorari, 364 U.S. 931, 81 S.Ct. 388, 5 L.Ed.2d 364.
3
Arraignment under Alabama law is a critical stage in a criminal proceeding. It is then that the defense of insanity must be pleaded (15 Ala.Code § 423), or the opportunity is lost. Morrell v. State, 136 Ala. 44, 34 So. 208. Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is 'not revisable' on appeal. Rohn v. State, 186 Ala. 5, 8, 65 So. 42, 43. Cf. Garrett v. State, 248 Ala. 612, 614—615, 29 So.2d 8, 9. Pleas in abatement must also be made at the time of arraignment. 15 Ala.Code § 279. It is then that motions to quash based on systematic exclusion of one race from grand juries (Reeves v. State, 264 Ala. 476, 88 So.2d 561), or on the ground that the grand jury was otherwise improperly drawn (Whitehead v. State, 206 Ala. 288, 90 So. 351), must be made.
4
Whatever may be the function and importance of arraignment in other jurisdictions,4 we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes. Cf. Canizio v. People of State of New York, 327 U.S. 82, 85—86, 66 S.Ct. 452, 453, 90 L.Ed. 545. In Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, the Court said that an accused in a capital case 'requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.' The guiding hand of counsel is needed at the trial 'lest the unwary concede that which only bewilderment or ignorance could justify or pay a penalty which is greater than the law of the State exacts for the offense which they in fact and in law committed.' Tomkins v. State of Missouri, 323 U.S. 485, 489, 65 S.Ct. 370, 372, 89 L.Ed. 407. But the same pitfalls or like ones face an accused in Alabama who is arraigned without having counsel at his side. When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted. Williams v. Kaiser, 323 U.S. 471, 475—476, 65 S.Ct. 363, 366, 89 L.Ed. 398; House v. Mayo, 324 U.S. 42, 45—46, 65 S.Ct. 517, 520, 89 L.Ed. 739; Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 442, 69 S.Ct. 184, 186, 93 L.Ed. 127. In this case, as in those, the degree of prejudice can never be known. Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.
5
Reversed.
1
Another count charged breaking and entering with intent to steal.
2
The minute entries indicated that petitioner had counsel at the arraignment.
3
Petitioner was first indicted for burglary and when arraigned had counsel present. Later, the present indictment, relating to the same incident, was returned. His counsel, who had been appointed, was advised that petitioner would be re-arraigned. But no lawyer appeared at this arraignment and we read the Alabama Supreme Court opinion to mean that the earlier appointment did not carry over.
4
Arraignment has differing consequences in the various jurisdictions. Under federal law an arraignment is a sine qua non to the trial itself—the preliminary stage where the accused is informed of the indictment and pleads to it, thereby formulating the issue to be tried. Crain v. United States, 162 U.S. 625, 644, 16 S.Ct. 952, 958, 40 L.Ed. 1097; Rules 10 and 11, Federal Rules of Criminal Procedure, 18 U.S.C.A. That view has led some States to hold that arraignment is the first step in a trial (at least in case of felonies) at which the accused is entitled to an attorney. People v. Kurant, 331 Ill. 470, 163 N.E. 411.
In other States arraignment is not 'a part of the trial' but 'a mere formal preliminary step to an answer or plea.' Ex parte Jeffcoat, 109 Fla. 207, 210, 146 So. 827, 828.
An arraignment normally, however, affords an opportunity of the accused to plead, as a condition precedent to a trial. Fowler v. State, 155 Tax.Cr.R. 35, 230 S.W.2d 810. N.J.Rules of Practice, Rule 8:4—2.
| 01
|
368 U.S. 35
82 S.Ct. 148
7 L.Ed.2d 103
Carl STILL, Petitioner,v.NORFOLK & WESTERN RAILWAY CO.
No. 48.
Argued Oct. 19, 1961.
Decided Nov. 13, 1961.
Sidney S. Sachs, Washington, D.C., for petitioner.
Joseph M. Sanders, Bluefield, W. Va., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The Federal Employers' Liability Act1 requires railroads to pay damages for personal injuries negligently inflicted upon their employees. The question this case presents is whether a railroad can escape this statutory liability by proving that an employee so injured has obtained his job by making false representations upon which the railroad rightfully relied in hiring him.
2
Petitioner brought this action in a West Virginia state court seeking damages for personal injuries from the respondent Norfolk & Western Railway Company, for which, as of the date of his alleged injuries, he had worked continuously except for a one-year interruption, for some six years. By special plea, the railroad set up as a defense the contention that petitioner was not 'employed' by it within the meaning of the Act2 and alleged in support of this defense: (1) that petitioner had made false and fraudulent representations in his application for employment with regard to his physical condition and other matters pertinent to his eligibility and capacity to serve as a railroad employee; (2) that petitioner would not have been hired but for these misrepresentations and the fact that they misled the railroad's hiring officials; and (3) that the very physical defects which had been fraudulently concealed from the railroad contributed to the injury upon which petitioner's action is based. Petitioner's demurrer to this plea was overruled and evidence by both parties was presented to a jury. When all the evidence was in, however, the trial court directed the jury to bring in a verdict for the defendant on the ground that the undisputed evidence showed that the railroad had been deceived into hiring petitioner by petitioner's fraudulent misrepresentations as to his health and that these misrepresentations had a 'direct causal connection' with the injuries upon which petitioner's action is based.
3
Throughout the proceedings in the trial court, petitioner contended that no verdict should be directed against him on the grounds, among others: (1) that the allegations of fraud set up in the railroad's special plea were not sufficient in law to state a defense under the Act; and (2) that even if the plea were sufficient in law, it rested upon questions of fact which should be submitted to the jury. On writ of error, the West Virginia Supreme Court of Appeals refused to overturn the trial court's action on either of these two grounds. Though we recognized that the case might possibly be disposed of on the second of these grounds, we granted certiorari to consider the important question raised by petitioner's first ground concerning the proper interpretation, scope and application of the Federal Employers' Liability Act.3
4
The railroad's primary contention, which was accepted as the principal basis of the action of the trial court, is that the sufficiency in law of its fraud defense was established by this Court's decision in Minneapolis, St. Paul & S. Ste. Marie R. Co. v. Rock.4 That case involved the railroad's liability for the negligent injury of one Joe Rock, who had obtained his employment by a whole series of fraudulent misrepresentations. Rock had originally applied for a job in his own name and had been rejected when his physical condition was found to be such that he did not meet the railroad's requirements. Several days later, he reapplied for the same job and, in order to conceal the fact that he had previously been refused employment because of his health, represented himself to be 'John Rock,' an apparently fictitious name he assumed for the purpose. He next arranged to have one Lenhart pose as 'John Rock' and take the railroad's physical examination. When Lenhart passed the physical, the railroad hired Joe Rock on the mistaken belief that he was 'John Rock' and that he had Lenhart's physical condition. On this unusual combination of facts, this Court held that Rock could not recover damages against the railroad under the Federal Employers' Liability Act, saying: 'Right to recover may not justify or reasonably be rested on a foundation so abhorrent to public policy.'5
5
The railroad here seeks to bring itself within the Rock decision by arguing that Rock established the principle that any false representation which deceives the employer and results in a railroad worker's getting a job he would not otherwise have obtained is sufficient to bar the worker from recovering the damages Congress has provided for railroad workers negligently injured in the honest performance of their duties under the Federal Employers' Liability Act. Although there is some language in the Rock opinion which might lend itself to such an interpretation, we think it plain that no such rule was ever intended. Certainly that was not the contemporaneous understanding of Rock among other courts as is plainly shown by the statements of Judge Nordbye when that interpretation of Rock was urged upon him only one year later at the trial of Minneapolis, St. Paul & S. Ste. Marie R. Co. v. Borum: 'It is inconceivable to this court that Justice Butler intended to hold in the Rock case that every fraudulent violation of the rules framed for maintaining a certain standard of safety and efficiency of the employees would render such employment void and deny the defrauding employee any rights under the act. It seems quite clear that any fraud practiced by the plaintiff herein at the most rendered the contract voidable.'6 And when the Borum case came here, this Court, although urged to do so, itself refused to extend Rock in any such manner.7 The decision in Borum, considered in the light of the facts there involved, reflects clearly the contemporaneously understood limitations upon the Rock approach and the reluctance of this Court to extend the vague notions of public policy upon which that case rested to new factual situations.
6
Borum, who was forty-nine at the time, wanted a job with a railroad that had, in the interest of promoting safety and efficiency in its operations, adopted a rule against hiring men over forty-five. Knowing this, he told the railroad employment officials that he was only thirty-eight and, by this deliberate misrepresentation, obtained a job he would not otherwise have been given. Although Borum took the railroad's required physical examination, it apparently knew nothing of Borum's deception about his age until some seven years later, after he had lost both of his legs in an accident caused by the railroad's negligence and had filed suit against it for damages under the Federal Employers' Liability Act. Just before trial of this case, a lastminute investigation turned up Borum's real age and the railroad sought to rely upon this fact to escape its liability under the Act. This Court unanimously upheld the Minnesota courts' determination that Borum had a right to recover despite his admittedly fraudulent and material misrepresentation of his age, brushing aside the railroad's attempted reliance upon Rock on the ground 'that the facts found, when taken in connection with those shown by uncontradicted evidence, are not sufficient to bring this case within the rule applied in Minneapolis, St. P. & S.S.M. Ry. Co. v. Rock, supra, or the reasons upon which that decision rests.'8
7
In support of this conclusion, the Court in Borum pointed to a number of factual differences with the Rock case. The first mentioned, and apparently the most important of these in the mind of the Court, was the fact that Rock, unlike Borum, had obtained his employment as an 'impostor' by presenting himself to the railroad under an assumed named after his initial application in his own name had been rejected. Secondly, the Court pointed to the fact that Rock, again unlike Borum, had never been approved as physically fit for employment by the railroad's examining surgeon. Finally, the Court made reference to the fact that under the railroad's own rules, it could not have discharged Borum for his misrepresentation because more than thirty days had passed since his original provisional employment and the rules made this action final unless changed within that period. But no one of these facts, as the Court recognized, was sufficient to justify a distinction between Rock and Borum based upon an acceptable reconciling principle. In both cases, the worker had been guilty of making a material, false and fraudulent representation without which he would not have been employed. And if such a method of obtaining employment was, as intimated in Rock, to be considered so 'abhorrent to public policy' that the normal distinction between 'void' and 'voidable' contracts was to be ignored,9 the mere existence of a railroad rule limiting the time for discharge without cause could not, of course, have overridden that policy. The Court therefore, as shown above, based its decision upholding Borum's right to recover upon all of the factual distinctions between his case and that of Rock and held merely that Rock would not be extended to cover these new facts.
8
This factual distinction of Rock, though sufficient to show the non-existence of any broad principle that material misrepresentations relied upon by a railroad in hiring bar recovery under the Act, proved completely unsatisfactory to establish affirmatively an intelligible guide by which lower courts could decide what misrepresentations were so 'abhorrent to public policy' as to compel a forfeiture of the worker's right to recover under the Federal Employers' Liability Act. And since Borum, the lower federal courts and state courts have been forced to struggle with the baffling problem of how much and what kinds of fraud are sufficiently abhorrent without further guidance from this Court. Consequently, in almost all of such cases, the courts have been faced with a dilemma occasioned by the fact that both parties have been able to argue with considerable force that a decision in their favor is absolutely required by one or the other of the two decisions on the question by this Court. The result in a vast majority of these courts has been an acceptance of Rock as laying down a narrow public policy holding to which Borum establishes the need for courts to make broad exceptions in appropriate cases. And, perhaps not so surprisingly, most cases have been deemed appropriate ones for avoiding the harsh consequences of Rock, with the courts creating new exceptions to allow recovery whenever a case did not fit within one already established.10 Occasionally, as here, a worker has been held to be barred from recovery, but these few cases seem entirely indistinguishable on any significant grounds from the many in which other courts have found or created exceptions.11
9
In this situation, it seems necessary for this Court, in the interest of the orderly administration of justice, to take a fresh look at this question in an effort to supply an intelligible guide for future decisions. Having done so, we conclude that the Rock case, properly interpreted, lays down no general rule at all. In that case, the Court was confronted with an action by a railroad worker who, though undeniably an employee of the railroad in any practical or legal sense, had obtained his employment in what was deemed to be such an outrageous manner that it seemed to the Court at that time to be 'abhorrent to public policy' to permit him to recover under the Act Congress had passed.12 There is no occasion for us here to reconsider the correctness of that decision on the basis of the peculiar combination of facts involved in that case, for no such facts are involved here and, indeed, they may never arise again. We do conclude, however, That Rock must be limited to its precise facts. In the face of the legislative policy embodied in the Federal Employers' Liability Act that a railroad should pay damages to its workers and their families for personal injuries inflicted by the railroad's negligence upon those who perform its duties, considerations of public policy of the general kind relied upon by the Court in Rock cannot be permitted to encroach further upon the special policy expressed by Congress in the Act. To facilitate this congressional policy, the terms 'employed' and 'employee' as used in the Act must, in all cases not involving the precise kind of fraud involved in Rock, be interpreted according to their ordinary meaning, and the status of employees who become such through other kinds of fraud, although possibly subject to termination through rescission of the contract of employment, must be recognized for purposes of suits under the Act. And this conclusion is not affected by the fact that an employee's misrepresentation may have, as is urged here, contributed to the injury or even to the accident upon which his action is based. This argument, which seems to have gained its popularity primarily as an exception by which the application of Rock could be avoided,13 suggests that a railroad worker may be partially 'employed' under the Act—that he may be able to recover for some injuries negligently inflicted upon him by the railroad and not be able to recover for others so inflicted, depending upon the circumstances of each particular injury. Even if this suggestion recommended itself to reason—which, other than as an exception to the broad principle mistakenly drawn from Rock, it plainly does not—we would not be free to accept it. For it finds no support at all in the history, purpose or language of the Act which provides recovery for any 'injury or death resulting in whole or in part from the negligence of' the railroad14 and there is no prior authority of this Court which requires or even permits us to disregard or impair this controlling declaration of public policy.15
10
The petitioner in this case was an employee under the Act and is therefore entitled to recover if he suffered injuries due to the railroad's negligence. It was therefore error to direct a verdict against him on the railroad's plea of fraud. The case is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
11
Reversed and remanded.
12
Mr. Justice FRANKFURTER, concurring in a judgment for a new trial.
13
The issue before the Court in this case is not the sufficiency of the evidence to sustain a verdict for or against an employee claiming recovery for injuries under the Federal Employers' Liability Act, 45 U.S.C. §§ 51—58, 45 U.S.C.A. §§ 51 58. It presents the question whether a misrepresentation by the petitioner regarding his health at the time the railroad hired him, bars recovery as a matter of law in view of our decision in Minneapolis, St. P. & S. Ste. M.R. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766. That decision held the statutory remedies unavailable because, as its author pithily stated it on two occasions, Rock 'was an impostor.' 279 U.S. at 412, 49 S.Ct. at 364; Minneapolis, St. P. & S. Ste. M.R. Co. v. Borum, 286 U.S. 447, 450, 52 S.Ct. 612, 76 L.Ed. 1218.
14
The Court does not now overrule Rock but says that it 'must be limited to its precise facts.' I take it this statement refers to the facts relevant to the result in that case; it does not mean that the plaintiff must be named Rock.
15
The scope of the Rock decision was defined in Borum, a case on which the Court's opinion now relies. The latter case came before this Court for review of the state court's refusal to set aside an arbitral finding that the plaintiff had been an employee. The judgment was affirmed on the basis that the evidence did not require a finding that deceit in obtaining employment had materially prejudiced the employer's efforts to select fit employees. The Court did not hold that the question of fraud in obtaining employment was improperly submitted to the trier of fact.
16
I would similarly dispose of this case; that is, upon a new trial the issue should not be withdrawn from the jury but submitted to it on the principle which governed the Borum case, supra.
17
Mr. Justice WHITTAKER, dissenting.
18
Claiming to have suffered injuries to his back by the negligence of fellow servants in the course of his employment by the respondent railroad in interstate commerce, petitioner brought this action against the railroad in a West Virginia court under the beneficent provisions of the Federal Employers' Liability Act. 45 U.S.C. §§ 51—58, 45 U.S.C.A. §§ 51—58. But application of the provisions of that Act is, in terms, made to depend upon, among other things, the existence of an employee status. At the conclusion of the evidence offered on the trial of the case before a jury, the railroad moved for a directed verdict upon the ground, among others, that petitioner did not occupy an employee status with the railroad. Believing that the undisputed evidence so clearly established that petitioner had procured his putative employment relation with the railroad by materially fraudulent misrepresentations to, and concealments from, the railroad and its examining physician of his now admitted congenitally defective back condition that reasonable men could not differ about it, the trial court granted the motion and directed the jury to, and it did, return a verdict for the railroad. The Supreme Court of Appeals of West Virginia declined to review and we granted certiorari. 365 U.S. 877, 81 S.Ct. 1026, 6 L.Ed.2d 190.
19
This Court now not only reverses that judgment, but it also—I think quite gratuitously and erroneously—restricts the case of Minneapolis, St. Paul & S. Ste. M.R. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766, 'to its precise facts.' While the undisputed evidence of petitioner's fraud upon the railroad in procuring the putative employment relationship seems fairly clear to me, as it did to the two state courts, I concede that reasonable men may differ about it; and therefore, if we must here deal with such fact issues, I am able to say that the issue should not have been determined by the court as a matter of law, but instead should have been submitted to the jury for resolution. But I am unable to agree to what I think is the Court's gratuitous and erroneous restriction of the Rock case 'to its precise facts,' and so I dissent.
20
The question is not whether one who has obtained an employee status with a railroad by a flagrant fraud may maintain an action to recover for injuries willfully or negligently inflicted upon him under, and subject to the conditions and defenses imposed by, the laws of the State in which the casualty occurred. Of course he may. His fraud, however flagrant, would not give the railroad a license to injure him. Rather the question is whether, despite his flagrant fraud in procuring the employee status, he may have the special benefits, and freedom from the normal defenses, given by Congress in the Federal Employers' Liability Act to one who has honestly acquired the status of and is truly an employee of a railroad. I think Congress did not intend to give those special benefits to a person who has acquired a putative employment relationship with a railroad by flagrant fraud, whether that fraud falls within the 'precise facts' of the Rock case or within any of the myriad variations thereof.
21
While the fraud that induced the putative employment relationship in the Rock case was so clear that this Court was able to and did determine the question as one of law, and the somewhat less compelling evidence of fraud in this case does not legally require a like result, that case does stand for the age-old and sound proposition that fraud in the inducement of a contract vitiates the contract. I cannot agree to a repudiation of that principle.
22
Irrespective of its legally clear fraudulent facts, the fundamental issue in the Rock case was 'whether, notwithstanding the means by which he got employment * * * (, petitioner) may maintain an action under the Federal Employers' Liability Act.' 279 U.S., at 413, 49 S.Ct., at 365. The same principle is involved here. Today, much as at the time of the Rock case, that 'Act abrogates the fellow-servant rule (and) restricts the defenses of contributory negligence and assumption of rick,' id., 279 U.S. at 413, 49 S.Ct., at 365, yet here, as there, petitioner 'in this action seeks, in virtue of its provisions and despite the rules of the common law, to hold (the railroad) liable for negligence of his fellow servants and notwithstanding his own negligence may have contributed to cause his injuries.' Ibid. Quite explicitly, Congress conferred the special remedies of that Act only upon those who occupy the status of employee. Surely that status, within the meaning of the Act, cannot be created by flagrant fraud, whether that fraud does or does not fall within the 'precise facts' of the Rock case. Today, no less than at the time of the Rock case, '(t)he carriers owe a duty to their patrons (and to the public) as well as to those engaged in the operation of their railroads to take care * * * to exclude the unfit from their service. The enforcement of the Act is calculated to stimulate them to proper performance of that duty.' 279 U.S., at 413—414, 49 S.Ct., at 365. One who fraudulently obstructs the discharge of that duty surely cannot be permitted to profit from his own wrong. These are the underlying principles of the Rock case, and I submit that they are sound.
23
Even though the evidence of petitioner's fraud in procuring the putative employment relationship here may not be sufficiently clear to enable the Court to declare it as a matter of law, and hence the issue must be submitted to the jury, surely the jury could find, on proper and sufficient evidence, that petitioner procured the putative employment relationship by fraud; and, since fraud in the inducement of the contract vitiates the contract, such a finding would establish that petitioner never, in truth, acquired the employment status which Congress intended to protect by the extraordinary provisions of the Act. Otherwise, '(t)he deception by which (petitioner may have) secured employment (would) set at naught the carrier's reasonable rule and practice established to promote the safety of (the public, its patrons and its) employees and to protect commerce.' Such fraud would directly oppose 'the public interest because calculated to embarrass and hinder the carrier in the performance of its duties and to defeat important purposes sought to be advanced by the Act.' 279 U.S., at 414, 49 S.Ct., at 365.
24
Only a fair measure of simple honesty is involved. Surely, Congress contemplated and expected that such would be necessary to create the status it was surrounding with these extraordinary rights.
25
Although the principles of the Rock case do not legally require a like result in this case, they properly do permit a jury, rightly instructed, to find, upon the aggravated evidence that so warrants, that the putative employment was induced by fraud. And if the jury should so find, it would follow that, in truth, the petitioner never did acquire and occupy an employee status within the meaning of the Act. This is but a simple application of the surely still valid principle that one may not profit from his own wrong. I think there is no call or reason here to tamper with the sound underlying principles of the Rock case.
1
45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60.
2
'Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.' 45 U.S.C. § 51, 45 U.S.C.A. § 51. (Emphasis supplied.)
3
365 U.S. 877, 81 S.Ct. 1026, 6 L.Ed.2d 190.
4
279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766.
5
Id., 279 U.S. at 415, 49 S.Ct. at 365.
6
Judge Nordbye's opinion is not reported but appears in the record in the Borum case certified to this Court. See also Qualls v. Atchison, Topeka & Santa Fe R. Co., 112 Cal.App. 7, 17, 296 P. 645, 650: 'This case (Rock) may be reasonably distinguished from the case at bar. In the Rock case the plaintiff was never really employed by the company. In the present case the plaintiff was employed.' But, cf. Fort Worth & Denver City R. Co. v. Griffith, Tex.Civ.App., 27 S.W.2d 351, 354.
7
286 U.S. 447, 52 S.Ct. 612, 76 L.Ed. 1218.
8
Id., 286 U.S. at 451, 52 S.Ct. at 613.
9
'The general rule is that fraud of this character renders a contract voidable rather than void, but that rule has been ignored in the Rock Case by the Supreme Court upon the ground that the safety of the traveling public is involved in a contract of this character, and for reasons of public policy it is held that the contract is void and, in effect, that appellee never became an employee of the appellant.' Fort Worth & Denver City R. Co. v. Griffith, Tex.Civ.App., 27 S.W.2d 351, 354.
10
See, e.g., Qualls v. Atchison, Topeka & Santa Fe R. Co., 112 Cal.App. 7, 17, 296 P. 645, 650 (misrepresentations as to past employment record held 'immaterial'); Powers v. Michigan Central R. Co., 268 Ill.App. 493, 498 (misrepresentations as to age and past employment record held insufficient to justify application of Rock because Rock 'involved an unusual state of facts'); Dawson v. Texas & Pacific R. Co., 123 Tex. 191, 196, 70 S.W.2d 392, 304 (misrepresentations as to past employment record and medical history held no bar because they were 'in nowise connected with the cause of his injury and not related to his fitness or his ability to discharge the duties required of him'); Texas & New Orleans R. Co. v. Webster, 123 Tex. 197, 201, 70 S.W.2d 394, 396 (misrepresentations as to previous injury and litigation arising out of that injury held no bar because 'it was not shown that his physical condition was such as to make his employment inconsistent with plaintiff in error's proper policy or its reasonable rules to insure discharge of its duty to select fit employees'); Carter v. Peoria & Pekin Union R. Co., 275 Ill.App. 298, 303—304 (misrepresentations as to medical history held no bar because there was no 'evidence to the effect that this former injury in any way disqualified or prevented appellant from properly performing his duties as switchman'); Phillips v. Southern Pacific Co., 14 Cal.App.2d 454, 457, 58 P.2d 688, 690 (misrepresentations as to past employment record held no bar even though facilitated by the use of an assumed name because there was no showing of 'a causal connection between the injury and the misstatements in the application for employment'); Laughter v. Powell, 219 N.C. 689, 698, 14 S.E.2d 826, 832, 136 A.L.R. 1116 (misrepresentations as to age held no bar because there was, despite these misrepresentations, 'a contract of employment, even though voidable, by which the relation of master and servant, or employer and employee, was created between defendants and plaintiff'); Newkirk v. Los Angeles Junction R. Co., 21 Cal.2d 308, 320, 131 P.2d 535, 543 (misrepresentations as to age held no bar because '(w)here employment is induced by fraudulent representations of the employee not going to the factum of the contract the employment exists although there may be ground for rescinding the contract, and recovery may be had from the employer for negligent injury to the employee at least where there is no causal connection between the injury and the misrepresentation'); Matthews v. Atchison, Topeka & Santa Fe R. Co., 54 Cal.App.2d 549, 556, 129 P.2d 435, 441 (misrepresentations as to age and past employment record held no bar even though these misrepresentations were facilitated by the use of an assumed name and even though they may have contributed to the worker's injury because the rule requiring "a causal connection between the injury and the misstatements' refers to the happening of the injury, not to its effects'); Blanton v. Northern Pacific R. Co., 215 Minn. 442, 446, 10 N.W.2d 382, 384 (misrepresentations as to medical history and physical condition held no bar because 'the jury could have found that there was no causal connection between the misrepresentation and plaintiff's hurt'); Casso v. Pennsylvania R. Co., 3 Cir., 219 F.2d 303, 305 (misrepresentations as to medical history and physical condition held no bar because the misrepresentations were not 'of such character that it 'substantially affected the examining surgeon's conclusion that he was in good health and acceptable physical condition"); Eresafe v. New York, New Haven & Hartford R. Co., 2 Cir., 250 F.2d 619, 621—622 (misrepresentations as to identity, medical history and physical condition held no bar because '(a) humane and realistic policy in such cases requires substantial proof of a direct causal connection between the misrepresentations made at the time of hiring and the subsequent injury to the employee'); White v. Thompson, 181 Kan. 485, 497 498, 312 P.2d 612, 621 (misrepresentations as to medical history and physical condition held no bar because 'it is not alleged the misrepresentations had causal relation to plaintiff's fitness to perform his duties and to the injuries he sustained,
or that they substantially affected the medical examiner's conclusion that plaintiff was in good health and acceptable physical condition, or that defendant remained unaware of the deception until after plaintiff's injuries').
11
Only four cases have been brought to the attention of this Court in which the railroad has been permitted to prevail on an issue raised by the defense of fraudulent procurement of employment. One of these, Forth Worth & Denver City R. Co. v. Griffith, Tex.Civ.App., 27 S.W.2d 351, was decided before Borum by a court which felt itself entirely bound by Rock: 'In deference to the holding of the Supreme Court of the United States, which we feel constrained to follow, the judgment is reversed and is here rendered for the appellant.' Id., 27 S.W.2d at 354. The other three are: Clark v. Union Pacific R. Co., 70 Idaho 70, 211 P.2d 402 (judgment for plaintiff reversed for failure to instruct the jury with regard to the railroad's fraud defense); Southern Pac Co. v. Libbey, 9 Cir., 199 F.2d 341 (judgment for plaintiff reversed for exclusion of evidence relating to railroad's fraud defense); and Talarowski v. Pennsylvania R. Co., D.C., 135 F.Supp. 503 (motion to strike the railroad's fraud defense denied). All four of these cases involved misrepresentations as to the worker's physical condition. Compare these cases with those cited in note 10, supra, especially with Blanton v. Northern Pacific R. Co.; Casso v. Pennsylvania R. Co.; Eresafe v. New York, New Haven & Hartford R. Co.; and White v. Thompson.
12
For contemporaneous comment on the Rock decision, see Merrill, Misrepresentation to Secure Employment, 14 Minn.L.Rev. 646; Comment, 43 Harv.L.Rev. 141; Comment, 28 Mich.L.Rev. 357.
13
'A humane and realistic policy in such cases requires substantial proof of a direct causal connection between the misrepresentations made at the time of hiring and the subsequent injury to the employee, before any defense of fraud can be considered as a bar to a recovery.' Eresafe v. New York, New Haven & Hartford R. Co., 2 Cir., 250 F.2d 619, 621—622. Mention of a requirement of direct causal connection between the misrepresentations and the injury can be found in cases prior to Rock, but there too the requirement was used to permit recovery despite fraud. See, e.g., St. Louis & San Francisco R. Co. v. Brantley, 168 Ala. 579, 588, 53 So. 305, 307; Lupher v. Atchison, Topeka & Santa Fe R. Co., 81 Kan. 585, 589, 106 P. 284, 286, 25 L.R.A.,N.S., 707; Galveston, Harrisburg & San Antonio R. Co. v. Harris, 48 Tex.Civ.App. 434, 437, 107 S.W. 108, 110; Louisville & Nashville R. Co. v. Lewis, 218 Ky. 197, 205, 291 S.W. 401, 404.
14
We do not, of course, mean to intimate that, in appropriate circumstances, evidence of a pre-existing physical defect might not be relevant on the issue of whether the injury complained of was caused by the railroad's negligence 'in whole or in part' by tending to show either that the worker was not injured by the railroad at all, that, if injured, the railroad was not responsible for the full extent of the injury, or that damages should be diminished by the jury because of contributory negligence.
15
Indeed, if the decisions of this Court can be said to point in either direction, it is toward the conclusion that a causal connection between the injury and the misrepresentations is totally irrelevant. For, as this Court expressly recognized, there was no such connection in Rock. 'While his (Rock's) physical condition was not a cause of his injuries, it did have direct relation to the propriety of admitting him to such employment.' 279 U.S. at 415, 49 S.Ct. at 365, 73 L.Ed. 766.
| 78
|
368 U.S. 57
82 S.Ct. 159
7 L.Ed.2d 118
Gwendolyn HOYT, Appellant,v.STATE OF FLORIDA.
No. 31.
Argued Oct. 19, 1961.
Decided Nov. 20, 1961.
Herbert B. Ehrmann, Boston, Mass., for appellant.
George R. Georgieff, Tallahassee, for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Appellant, a woman, has been convicted in Hillsborough County, Florida, of second degree murder of her husband. On this appeal under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), from the Florida Supreme Court's affirmance of the judgment of conviction, 119 So.2d 691, we noted probable jurisdiction, 364 U.S. 930, 81 S.Ct. 382, 5 L.Ed.2d 364, to consider appellant's claim that her trial before an all-male jury violated rights assured by the Fourteenth Amendment. The claim is that such jury was the product of a state jury statute which works an unconstitutional exclusion of women from jury service.
2
The jury law primarily in question is Fla.Stat., 1959, § 40.01(1), F.S.A. This Act, which requires that grand and petit jurors be taken from 'male and female' citizens of the State possessed of certain qualifications,1 contains the following proviso:
3
'provided, however, that the name of no female person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list.'
4
Showing that since the enactment of the statute only a minimal number of women have so registered, appellant challenges the constitutionality of the statute both on its face and as applied in this case. For reasons now to follow we decide that both contentions must be rejected.
5
At the core of appellant's argument is the claim that the nature of the crime of which she was convicted peculiarly demanded the inclusion of persons of her own sex on the jury. She was charged with killing her husband by assaulting him with a baseball bat. An information was filed against her under Fla.Stat., 1959, § 782.04, F.S.A., which punishes as murder in the second degree 'any act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual * * *.' As described by the Florida Supreme Court, the affair occurred in the context of a marital upheaval involving, among other things, the suspected infidelity of appellant's husband, and culminating in the husband's final rejection of his wife's efforts at reconciliation. It is claimed, in substance, that women jurors would have been more understanding or compassionate than men in assessing the quality of appellant's act and her defense of 'temporary insanity.' No claim is made that the jury as constituted was otherwise afflicted by any elements of supposed unfairness. Cf. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.
6
Of course, these premises misconceive the scope of the right to an impartially selected jury assured by the Fourteenth Amendment. That right does not entitle one accused of crime to a jury tailored to the circumstances of the particular case, whether relating to the sex or other condition of the defendant, or to the nature of the charges to be tried. It requires only that the jury be indiscriminately drawn from among those eligible in the community for jury service, untrammelled by any arbitrary and systematic exclusions. See Fay v. New York, 332 U.S. 261, 284—285, 67 S.Ct. 1613, 1625, 1626, 91 L.Ed. 2043, and the cases cited therein. The result of this appeal must therefore depend on whether such an exclusion of women from jury service has been shown.
I.
7
We address ourselves first to appellant's challenge to the statute on its face.
8
Several observations should initially be made. We of course recognize that the Fourteenth Amendment reaches not only arbitrary class exclusions from jury service based on race or color, but also all other exclusions which 'single out' any class of persons 'for different treatment not based on some reasonable classification.' Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 670, 98 L.Ed. 866. We need not, however, accept appellant's invitation to canvass in this case the continuing validity of this Court's dictum in Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664, to the effect that a State may constitutionally 'confine' jury duty 'to males.' This constitutional proposition has gone unquestioned for more than eighty years in the decisions of the Court, see Fay v. New York, supra, 332 U.S. at 289—290, 67 S.Ct. at 1628, and had been reflected, until 1957, in congressional policy respecting jury service in the federal courts themselves.2 Even were it to be assumed that this question is still open to debate, the present case tenders narrower issues.
9
Manifestly, Florida's § 40.01(1) does not purport to exclude women from state jury service. Rather, the statute 'gives to women the privilege to serve but does not impose service as a duty.' Fay v. New York, supra, 332 U.S. at 277, 67 S.Ct. at 1622. It accords women an absolute exemption from jury service unless they expressly waive that privilege. This is not to say, however, that what in form may be only an exemption of a particular class of persons can in no circumstances be regarded as an exclusion of that class. Where, as here, an exemption of a class in the community is asserted to be in substance an exclusionary device, the relevant inquiry is whether the exemption itself is based on some reasonable classification and whether the manner in which it is exercisable rests on some rational foundation.
10
In the selection of jurors Florida has differentiated between men and women in two respects. It has given women an absolute exemption from jury duty based solely on their sex, no similar exemption obtaining as to men.3 And it has provided for its effectuation in a manner less onerous than that governing exemptions exercisable by men: women are not to be put on the jury list unless they have voluntarily registered for such service; men, on the other hand, even if entitled to an exemption, are to be included on the list unless they have filed a written claim of exemption as provided by law.4 Fla.Stat., 1959, § 40.10, F.S.A.
11
In neither respect can we conclude that Florida's statute is not 'based on some reasonable classification,' and that it is thus infected with unconstitutionality. Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.
12
Florida is not alone in so concluding. Women are now eligible for jury service in all but three States of the Union.5 Of the forty-seven States where women are eligible, seventeen besides Florida, as well as the District of Columbia, have accorded women an absolute exemption based solely on their sex, exercisable in one form or another.6 In two of these States, as in Florida, the exemption is automatic, unless a woman volunteers for such service.7 It is true, of course, that Florida could have limited the exemption, as some other States have done, only to women who have family responsibilities.8 But we cannot regard it as irrational for a state legislature to consider preferable a broad exemption, whether born of the State's historic public policy or of a determination that it would not be administratively feasible to decide in each individual instance whether the family responsibilities of a prospective female juror were serious enough to warrant an exemption.
13
Likewise we cannot say that Florida could not reasonably conclude that full effectuation of this exemption made it desirable to relieve women of the necessity of affirmatively claiming it, while at the same time requiring of men an assertion of the exemptions available to them. Moreover, from the standpoint of its own administrative concerns the State might well consider that it was 'impractical to compel large numbers of women, who have an absolute exemption, to come to the clerk's office for examination since they so generally assert their exemption.' Fay v. New York, supra, 332 U.S. at 277, 67 S.Ct. at 1622 compare 28 U.S.C. § 1862, 28 U.S.C.A. § 1862; H.R.Rep. No. 308, 80th Cong., 1st Sess. A156 (1947).9
14
Appellant argues that whatever may have been the design of this Florida enactment, the statute in practical operation results in an exclusion of women from jury service, because women, like men, can be expected to be available for jury service only under compulsion. In this connection she points out that by 1957, when this trial took place, only some 220 women out of approximately 46,000 registered female voters in Hillsborough County constituting about 40 per cent of the total voting population of that county10—had volunteered for jury duty since the limitation of jury service to males, see Hall v. Florida, 136 Fla. 644, 662 665, 187 So. 392, 400—401, was removed by § 40.01(1) in 1949. Fla.Laws 1949, c. 25126.
15
This argument, however, is surely beside the point. Given the reasonableness of the classification involved in § 40.01(1), the relative paucity of women jurors does not carry the constitutional consequence appellant would have it bear. 'Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period.' Hernandez v. Texas, supra, 347 U.S. at 482, 74 S.Ct. at 672.
16
We cannot hold this statute as written offensive to the Fourteenth Amendment.
II.
17
Appellant's attack on the statute as applied in this case fares no better.
18
In the year here relevant Fla.Stat., 1955, § 40.10, F.S.A., in conjunction with § 40.02 required the jury commissioners, with the aid of the local circuit court judges and clerk, to compile annually a jury list of 10,000 inhabitants qualified to be jurors. In 1957 the existing Hillsborough County list had become exhausted to the extent of some 3,000 jurors. The new list was constructed by taking over from the old list the remaining some 7,000 jurors, including 10 women, and adding some 3,000 new male jurors to build up the list to the requisite 10,000. At the time some 220 women had registered for jury duty in this county, including those taken over from the earlier list.
19
The representative of the circuit court clerk's office, a woman, who actually made up the list testified as follows as to her reason for not adding others of the 220 'registered' women to the 1957 list: 'Well, the reason I placed ten is I went back two or three, four years, and noticed how many women they had put on before and I put on approximately the same number.' She further testified: 'Mr. Lockhart (one of the jury commissioners) told me at one time to go back approximately two or three years to get the names because they were recent women that had signed up, because in this book (the female juror register), there are no dates at the beginning of it, so we can't I don't know exactly how far back they do go and so I just went back two or three years to get my names.' When read in light of Mr. Lockhart's testimony, printed in the margin,11 it is apparent that the idea was to avoid listing women who though registered might be disqualified because of advanced age or for other reasons.
20
Appellant's showing falls far short of giving this procedure a sinister complexion. It is true of course that the proportion of women on the jury list (10) to the total of those registered for such duty (some 220) was less than 5%, and not 27% as the trial court mistakenly said and the state appellate court may have thought. But when those listed are compared with the 30 or 35 women who had registered since 1952 (note 11, 368 U.S., p. 66, 82 S.Ct. p. 165) the proportion rises to around 33%, hardly suggestive of an arbitrary, systematic exclusionary purpose. Equally unimpressive is appellant's suggested 'male' proportion which we are asked to contrast with the female percentage. The male proportion is derived by comparing the number of males contained on the jury list with the total number of male electors in the county. But surely the resulting proportion is meaningless when the record does not even reveal how many of such electors were qualified for jury service, how many had been granted exemptions (notes 3 and 4, 368 U.S., p. 61, 82 S.Ct., p. 162), and how many on the list had been excused when first called. (Id.)
21
This case in no way resembles those involving race or color in which the circumstances shown were found by this Court to compel a conclusion of purposeful discriminatory exclusions from jury service. E.g., Hernandez v. Texas, supra; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991. There is present here neither the unfortunate atmosphere of ethnic or racial prejudices which underlay the situations depicted in those cases, nor the long course of discriminatory administrative practice which the statistical showing in each of them evinced.
22
In the circumstances here depicted, it indeed 'taxes our credulity,' Hernandez v. Texas, supra, 347 U.S. at 482, 74 S.Ct. 672 to attribute to these administrative officials a deliberate design to exclude the very class whose eligibility for jury service the state legislature, after many years of contrary policy, had declared only a few years before. (See p. 64 of 368 U.S., p. 161 of 82 S.Ct., supra.) It is sufficiently evident from the record that the presence on the jury list of no more than ten or twelve women in the earlier years, and the failure to add in 1957 more women to those already on the list, are attributable not to any discriminatory motive, but to a purpose to put on the list only those women who might be expected to be qualified for service if actually called. Nor is there the slightest suggestion that the list was the product of any plan to place on it only women of a particular economic or other community or organizational group. Cf. Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181; Glasser v. United States, 315 U.S. 60, 83—87, 62 S.Ct. 457, 470—472, 86 L.Ed. 680. Ann see also Fay v. New York, supra, 332 U.S., at 287, 67 S.Ct. at 1627.
23
Finally, the disproportion of women to men on the list independently carries no constitutional significance. In the administration of the jury laws proportional class representation is not a constitutionally required factor. See Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692; Cassell v. Texas, 339 U.S. 282, 286—287, 70 S.Ct. 629, 631, 94 L.Ed. 839; Fay v. New York, supra, 332 U.S. at 290—291, 67 S.Ct. at 1628, 1629.
24
Finding no substantial evidence whatever in this record that Florida has arbitrarily undertaken to exclude women from jury service, a showing which it was incumbent on appellant to make, hernandez v. Texas, supra, 347 U.S. at 479—480, 74 S.Ct. at 671; Fay v. New York, supra, 332 U.S. at 285, 67 S.Ct. at 1626, we must sustain the judgment of the Supreme Court of Florida. Cf. Akins v. Texas, supra.
25
Affirmed.
26
THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS, concurring.
27
We cannot say from this record that Florida is not making a good faith effort to have women perform jury duty without discrimination on the ground of sex. Hence we concur in the result, for the reasons set forth in Part II of the Court's opinion.
1
Jurors must be: 'persons over the age of twenty-one years, who are citizens of this state, and who have resided in the state for one year and in their respective counties for six months, and who are duly qualified electors of their respective counties * * *.'
2
From the First Judiciary Act of 1789, § 29, 1 Stat. 73, 88, to the Civil Rights Act of 1957, 71 Stat. 634, 638, 28 U.S.C. § 1861, 28 U.S.C.A. § 1861—a period of 168 years—the inclusion or exclusion of women on federal juries depended upon whether they were eligible for jury service under the law of the State where the federal tribunal sat. See Ballard v. United States, 329 U.S. 187, 191—192, 67 S.Ct. 261, 263, 91 L.Ed. 181; Glasser v. United States, 315 U.S. 60, 64—65, 62 S.Ct. 457, 462, 86 L.Ed. 680. By the Civil Rights Act of 1957 Congress made eligible for jury service 'Any citizen of the United States,' possessed of specified qualifications, 28 U.S.C. § 1861, 28 U.S.C.A. § 1861, thereby for the first time making qualifications for federal jury service wholly independent of those prescribed by state law. The effect of that statute was to make women eligible for federal jury service even though ineligible under state law. See United States v. Wilson, D.C., 158 F.Supp. 442, aff'd, 5 Cir., 255 F.2d 686. There is no indication that such congressional action was impelled by constitutional considerations. Cf. Fay v. New York, supra, 332 U.S. at 290, 67 S.Ct. at 1628.
3
Men may be exempt because of age, bodily infirmity, or because they are engaged in certain occupations. Fla.Stat., 1959, § 40.08, F.S.A.
4
Under Fla.Stat., 1959, § 40.12, F.S.A., every person claiming an exemption, other than as provided with respect to women in § 40.01(1), must file, annually, before December 31 with the clerk of the circuit court an affidavit of exemption and the grounds on which such claim is based. The affidavit is forwarded to the jury commissioners, who, if the affidavit is found sufficient, then omit the affiant from the jury list for the succeeding calendar year. In case exemption is denied, the claim to it may be renewed in any court in which the affiant is summoned as a juror during that year. The exemption for such year is lost, however, by failure to file the required affidavit before the end of the preceding year.
5
Alabama, Ala.Code, 1940 (Recompiled Vol. 1958), Tit. 30, § 21; Mississippi, Miss.Code Ann., 1942 (Recompiled Vol. 1956), § 1762; South Carolina, S.C.Code, 1952, § 38—52.
6
Alaska, Alaska Comp.Laws Ann., 1949, § 55—7—24 Eighth; Arkansas, Ark.Stat. 1947, § 39—112; District of Columbia, D.C.Code, 1961, Tit. 11, § 1418; Georgia, Ga.Code Ann., 1933 (Supp.1958), § 59—124; Idaho, Idaho Code, 1948, § 2—411 and (Supp.1961) § 2—304; Kansas, Kan.Gen.Stat., 1949, § 43—116, § 43 117; Louisiana, La.Rev.Stat., 1950, § 15:172.1; Minnesota, Minn.Stat.Ann., 1947, § 593.04; (Supp.1960) § 628.49; Missouri, Mo.Const., Art. I, § 22(b), V.A.M.S.; Nevada, Nev.Rev.Stat., 1957, § 6.020, subd. 3; New Hampshire, N.H.Rev.Stat.Ann., 1955, § 500:1; New York, McKinney's N.Y.Consol.Laws, c. 30, Judiciary Law (Supp.1961), § 507, subd. 7; North Dakota, N.D.Cent.Code, 1960, § 27—09—04; Rhode Island, R.I.Gen.Laws, 1956, § 9—9—11; Tennessee, Tenn.Code Ann., 1955, § 22—101, § 22—108; Virginia, Va.Code, 1950 (Replacement Vol. 1957, Supp.1960), § 8—178(30); Washington, Wash.Rev.Code, 1951, § 2.36.080; Wisconsin, Wis.Stat.Ann., 1957, § 6.015(2).
In twenty-one States women, generally speaking, are eligible for jury service on the same basis and considerations as men: Arizona, Ariz.Rev.Stat.Ann., 1956, § 21—202, § 21-336; California, Calif.Code Civ.Proc., 1954, § 198, § 200, § 201; Colorado, Colo.Rev.Stat., 1953, § 78—1—1(2), § 78—1—3, § 78—1—7; Delaware, Del.Code Ann., 1953, Tit. 10, § 4504; Hawaii, Hawaii, Const., Art. I, § 12; Hawaii Rev.Laws, 1955, § 221—3, § 221—4; Illinois, Smith-Hurd's Ill.Ann.Stat., 1935 (Supp.1960), c. 78, § 4; Indiana, Burns' Ind.Ann.Stat., 1933 (Replacement Vol. 1946; Supp.1961), § 4 3317; Iowa, Iowa Code Ann., 1950, § 607.2, § 607.3; Kentucky, Ky.Rev.Stat., 1960, § 29.035; Maine, Me.Rev.Stat., 1954, c. 116, § 7; Maryland, Michie's Md.Ann.Code, 1957, Art. 51, § 3 and (Supp.1961) Art. 51, § 8 (women still have an absolute exemption in four counties); Michigan, Mich.Stat.Ann., 1938 (Supp.1959), § 27.263, § 27.264, Comp.Laws 1948, §§ 602.138, 602.139; Montana, Mont.Rev.Code Ann., 1947, § 93—1304, § 93—1305; New Jersey, N.J.Stat.Ann., 1952 (Supp.1960), § 2A:69—1, § 2A:69—2; New Mexico, N.M.Stat.Ann., 1953, § 19—1—2, § 19—1—31; Ohio, Page's Ohio Rev.Code Ann., 1954, § 2313.12, § 2313.16; Oregon, Ore.Rev.Stat., 1959, § 10.040, § 10.050; Pennsylvania, Purdon's Pa.Stat.Ann., 1930, Tit. 17, § 1279, § 1280; South Dakota, S.D.Code, 1939 (Supp.1960), § 32.1001, § 32.1002; Vermont, Vt.Stat.Ann., 1958, Tit. 12, § 1410; West Virginia, W.Va.Code, 1955 (Supp.1960), § 5262.
7
Louisiana, La.Rev.Stat., 1950, § 15:172.1; New Hampshire, N.H.Rev.Stat.Ann., 1955, § 500:1.
8
In eight States women may be excused if they have family responsibilities which would make jury service an undue hardship: Connecticut, Conn.Gen.Stat.Rev., 1958, c. 884, § 51—218; Massachusetts, Mass.Gen.Laws Ann., 1959, c. 234, § 1, § 1A; Nebraska, Neb.Rev.Stat., 1943 (Reissue Vol. 1956), § 25—1601.01, § 25—1601.02; North Carolina, N.C.Gen.Stat., 1943 (Recompiled Vol. 1953; Supp.1959), § 9—19; Oklahoma, Okla.Stat.Ann., 1951 (Supp.1960), Tit. 38, § 28; Texas, Vernon's Tex.Rev.Civ.Stat., 1926 (Supp.1960), Art. 2135; Utah, Utah Code Ann., 1953, § 78—46 10(14); Wyoming, Wyo.Comp.Stat., 1945 (Supp.1957), § 12—104.
9
28 U.S.C. § 1862, 28 U.S.C.A. § 1862, exempts from federal jury duty those in active service in the armed forces, members of federal or local police and fire departments, and certain actively engaged federal, state and local public officials. The House Report on the bill states:
'This section (§ 1862) makes provision for specific exemption of classes of citizens usually excused from jury service in the interest of the public health, safety, or welfare. The inclusion in the jury list of persons so exempted usually serves only to waste the time of the court.'
10
114,247, of which some 68,000 were men.
11
Mr. Lockhart testified:
'Q. All right. Now, getting back to March 8, 1957, how many eligible female women were registered in that book? A. Well, I don't know how many were qualified, but they have the names on there of about 220.
'Q. Approximately 220? A. As I say, from 1952, on, since I went back on the second time, there has only been about 35 that has registered with the Clerk of the Circuit Court. at 672 to attribute to these administrative any eligible female names left off of this jury list which you've prepared? A. There probably were.
'Q. On March 8, 1957? A. From the last four years, we have been averaging about ten to twelve on each list.
'Q. All right. Why is that, Mr. Lockhart? A. Because since 1952, there has only been about 30, 35 that's qualified to, I mean, went down and registered for jury duty. You don't have much to choose from.
'Q. Well, now, how do you select women's names from that registration book? A. Well, we just have to take the names on there, that's all.
'Q. Well, you've used some system with reference to that book, do you not? A. Well, we try to check them through. They did before this last year. I tried to check them through the City Directory. You'll find that a good many of the women folks now are over 65. In fact, one of them is approximately eighty.
'Q. What I am trying to get at, Mr. Lockhart, is this. If there were only ten women's names, as you testified, went into the present jury list and there were at the time about 220 eligible women who had registered for jury service, why the difference between ten and 220 which were apparently eligible? A. Well, they have been put over a spread of years.
'Q. Well, how do you do that? A. Well, every year, there is a new jury list and we put on ten or twelve every jury list. In fact, along seven or eight years ago, it was
pretty hard to see whether—the status changed so rapidly, it was pretty hard to know whether they would be qualified or not.
'Q. Would I be correct, then, in saying that you omitted approximately 210 eligible women's names when you compiled this list? A. I wouldn't say they were eligible because we didn't check them. We don't check every name on the registration books.
'Q. I'm talking about this registration book in the Clerk of the Circuit Court's office, Mr. Lockhart, where the women are required to come there and register for jury duty? A. You can say it's 220 names on that book. There is.
'Q. All right. If there are 220 eligible women on that book A. I don't know if they are eligible or not.
'Q. What I want to know, then, is why you picked just ten out of that 220 to go into this jury list? A. Well, we picked—we have average, for the last four years, ten to twelve on each list.
'Q. Mr. Lockhart, in making up this jury list, from which the present panel was drawn, did you attempt to comply with Florida Statute, Section 40.01, subsection (1), in making up that list? A. Would you mind reading it to me?
'Q. Well, that's the Statute, Mr. Lockhart, governing the qualifications for jurors and I will read it, if you like. (§ 40.01 read.) Now, what I am asking, Mr. Lockhart, is, did you purport to comply with that statute when you prepared this jury list? A. Yes, sir.
'Q. All right. Did you put in this list on March 8, 1957, any women or female's names who were registered voters but who had not registered with the Clerk of the Circuit Court? A. If it was there, we didn't intend to. We checked the registration. The law requires that to be on registration.
'Q. In other words, you would say that you did not? A. Yes. That's right. I doubt what, with that small number of names. They were checked with the registration office.'
| 12
|
368 U.S. 139
82 S.Ct. 235
7 L.Ed.2d 184
John E. HODGES, Petitioner,v.UNITED STATES.
No. 58.
Argued Nov. 13, 1961.
Decided Dec. 4, 1961.
Quinn O'Connell, Washington, D.C., for petitioner.
Beatrice Rosenberg, Washington, D.C., for respondent.
PER CURIAM.
1
We brought this case here upon the understanding that the question it presented was whether the District Court should have accorded petitioner a hearing under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, when it appeared that no appeal had been perfected from the original judgment of conviction. After a thorough review of the full record, made possible after the case was briefed and argued on the merits, we have concluded that the petition for certiorari was improvidently granted. The record shows that the District Court did in fact conduct a hearing upon the petitioner's § 2255 motion, 156 F.Supp. 313, but that the minutes of such hearing have been lost. Whether or not that hearing was adequate need not, however, be determined, for we are satisfied from the record, which includes the trial transcript, that in any event this was a case where no hearing was required under the statute, because 'the files and records of the case conclusively show' that the petitioner was entitled to no relief. Therefore, and necessarily without approving or disapproving the view of the Court of Appeals on what now appears an extraneous issue, 108 U.S.App.D.C. 375, 282 F.2d 858, we dismiss the writ as improvidently granted. It is so ordered.
2
Writ dismissed.
3
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
4
The hearing which the District Court gave petitioner under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, is not dispositive of the case. That hearing was held October 25, 1957. The issue with which the Court of Appeals in the present case was concerned was presented in two affidavits, one by petitioner dated August 3, 1959, and the other by petitioner's lawyers dated July 31, 1959. Petitioner swears he did not know that he had only 10 days to appeal. Petitioner's lawyers swear, 'We were present at the time that sentence was imposed. Immediately after sentence was imposed, John Hodges was removed from the courtroom by the U. S. Marshal and we did not have an opportunity to talk to him.' They also state that they advised petitioner's wife that she should have him prosecute an appeal. Petitioner says that when his wife mentioned an appeal, the 10-day period had passed. No one gave petitioner timely notice of his right to appeal.*
5
The underlying constitutional issue which petitioner presses is that the confession used against him was coerced. I do not see how we can say that 'the files and records of the case conclusively show' that petitioner is entitled to no relief. Following the 1957 hearing the District Court made a finding that petitioner's confession was 'voluntary' and was not 'the result of coercion, threats or promises.' (156 F.Supp. 314.) But there is no record of that hearing. The reporter's notes were lost. No court can review the findings. No court has ever reviewed them.
6
We are not here concerned with the right to appeal out of time, as was the case of United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. Indeed, in Robinson the Court recognized that relief was, or should be, available under § 2255 in cases such as the one now before us:
7
'The allowance of an appeal months or years after expiration of the prescribed time seems unnecessary for the accomplishment of substantial justice, for there are a number of collateral remedies available to redress denial of basic rights. Examples are: The power of a District Court under Rule 35 to correct an illegal sentence at any time, and to reduce a sentence within 60 days after the judgment of conviction becomes final; the power of a District Court to entertain a collateral attack upon a judgment of conviction and to vacate, set aside or correct the sentence under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255; and proceedings by way of writ of error coram nobis.' Id., 361 U.S. at 230, note 14, 80 S.Ct. at 288.
8
If the error now being pressed were a non-constitutional one, relief might be denied, citing Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. But in that case, where habeas corpus was sought to do service as an appeal, we made clear that we were not dealing with constitutional defects in the trial. Id., 332 U.S. at 178, 182, 67 S.Ct. at 1590. When a constitutional issue was presented, we took the other course and allowed relief by way of § 2255, at least until today. See, e.g., Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114. In the Jordan case, petitioner had not raised the constitutional objection at the trial; and though he had appealed, he had failed to raise it there. 98 U.S.App.D.C. 160, 166, 233 F.2d 362, 368. Later he tendered it in the § 2255 proceeding. We held that the constitutional issue, though not raised at the trial or on appeal, as could have been done, could be raised in a § 2255 proceeding. The Court of Appeals promptly and properly took the Jordan case to mean just that. Askins v. United States, 102 U.S.App.D.C. 198, 200, 251 F.2d 909, 911. If the Jordan case is the law, I fail to see why relief by way of § 2255 is not available when petitioner, through no fault of his own, was denied the right to appeal.
*
Had the sentencing court realized petitioner had no effective legal representation at the time, its duty would have been clear. Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: '* * * When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. An appeal by the government when authorized by statute may be taken within 30 days after entry of the judgment or order appealed from.'
| 01
|
368 U.S. 71
82 S.Ct. 199
7 L.Ed.2d 139
WESTERN UNION TELEGRAPH COMPANY, Appellant,v.COMMONWEALTH OF PENNSYLVANIA, by Sidney GOTTLIEB, Escheator.
No. 15.
Argued Oct. 12, 1961.
Decided Dec. 4, 1961.
John G. Buchanan, Jr., Pittsburgh, Pa., for appellant.
Ruth Kessler Toch, Albany, N.Y., for the State of New York, as amicus curiae.
A. Jere Creskoff, Philadelphia, Pa., for appellee.
Mr. Justice BLACK delivered the opinion of the Court.
1
Pennsylvania law provides that 'any real or personal property within or subject to the control of this Commonwealth * * * shall escheat to the Commonwealth' whenever it 'shall be without a rightful or lawful owner,' 'remain unclaimed for the period of seven successive years' or 'the whereabouts of such owner * * * shall be and remain unknown for the period of seven successive years.'1 These proceedings were begun under that law in a Pennsylvania state court to escheat certain obligations of the Western Union Telegraph Company—alleged to be 'property within' Pennsylvania—to pay sums of money owing to various people who had left the monies unclaimed for more than seven years and whose whereabouts were unknown. The facts were stipulated.
2
Western Union is a corporation chartered under New York law with its principal place of business in that State. It also does business and has offices in all the other States except Alaska and Hawaii, in the District of Columbia, and in foreign countries, and was from 1916 to 1934 subject to regulation by the I.C.C. and since then by the F.C.C. In addition to sending telegraphic messages throughout its world-wide system, it carries on a telegraphic money order business which commonly works like this. A sender goes to a Western Union office, fills out an application and gives it to the company clerk who waits on him together with the money to be sent and the charges for sending it. A receipt is given the sender and a telegraph message is transmitted to the company's office nearest to the payee directing that office to pay the money order to the payee. The payee is then notified and upon properly identifying himself is given a negotiable draft, which he can either endorse and cash at once or keep for use in the future. If the payee cannot be located for delivery of the notice, or fails to call for the draft within 72 hours, the office of destination notifies the sending office. This office then notifies the original sender of the failure to deliver and makes a refund, as it makes payments to payees, by way of a negotiable draft which may be either cashed immediately or kept for use in the future.
3
In the thousands of money order transactions carried on by the company, it sometimes happens that it can neither make payment to the payee nor make a refund to the sender. Similarly payees and senders who accept drafts as payment or refund sometimes fail to cash them. For this reason large sums of money due from Western Union for undelivered money orders and unpaid drafts accumulate over the years in the company's offices and bank accounts throughout the country. It is an accumulation of this kind that Pennsylvania seeks to escheat here—specifically, the amount of undisbursed money held by Western Union arising out of money orders bought in Pennsylvania offices to be transmitted to payees in Pennsylvania and other States, chiefly other States.
4
Western Union, while not claiming these monies for itself, challenged Pennsylvania's right to take ownership of them for itself.2 Among other grounds the company urged that a judgment of escheat for Pennsylvania in its courts would not protect the company from multiple liability either in Pennsylvania or in other States. Its argument in this respect was that senders of money orders and holders of drafts would not be bound by the Pennsylvania judgment because the service by publication did not, for two reasons, give the state court jurisdiction: (1) that under the doctrine of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, the presence of property, called a 'res,' within the State is a prerequisite for service by publication and that these obligations did not constitute such property within Pennsylvania, and (2) that the notice by publication given in this case did not give sufficient information or afford sufficient likelihood of actual notice to meet due process requirements. In addition, Western Union urged that there might be escheats claimed by other States which would not be bound by the Pennsylvania judgment because they were not and could not be made parties to this Pennsylvania proceeding. Western Union's apprehensions that other States might later escheat the same funds were buttressed by the Pennsylvania court's finding that New York had already seized and escheated a part of the very funds here claimed by Pennsylvania. With reference to this the Pennsylvania Court of Common Pleas said: 'We take this opportunity of stating that we do not recognize New York's authority to escheat that money, but since it has been done we have no jurisdiction over this sum.' 73 Dauphin County Rep. 160, 173. Both the Pennsylvania trial court and the State Supreme Court rejected the contentions of Western Union and declared the unclaimed obligations escheated. 73 Dauphin County Rep. 160; 74 Dauphin County Rep. 49; 400 Pa. 337, 162 A.2d 617. Since the record showed substantial questions as to the jurisdiction of the Pennsylvania courts over the individual owners of the unclaimed monies and as to the power of the State of Pennsylvania to enter a binding judgment that would protect Western Union against subsequent liability to other States, we noted probable jurisdiction. 365 U.S. 801, 81 S.Ct. 466, 5 L.Ed.2d 459.
5
We find it unnecessary to decide any of Western Union's contentions as to the adequacy of notice to and validity of service on the individual claimants by publication. For as we view these proceedings, there is a far more important question raised by this record—whether Pennsylvania had power at all to render a judgment of escheat which would bar New York or any other State from escheating this same property.
6
Pennsylvania does not claim and could not claim that the same debts or demands could be escheated by two states. See Standard Oil Co. v. State of New Jersey, 341 U.S. 428, 443, 71 S.Ct. 822, 831, 95 L.Ed. 1078. And our prior opinions have recognized that when a state court's jurisdiction purports to be based, as here, on the presence of property within the State, the holder of such property is deprived of due process of law if he is compelled to relinquish it without assurance that he will not be held liable again in another jurisdiction or in a suit brought by a claimant who is not bound by the first judgment. Anderson National Bank v. Luckett, 321 U.S. 233, 242—243, 64 S.Ct. 599, 604, 88 L.Ed. 692; Security Savings Bank v. People of State of California, 263 U.S. 282, 286—290, 44 S.Ct. 108, 110—111, 68 L.Ed. 301. Applying that principle, there can be no doubt that Western Union has been denied due process by the Pennsylvania judgment here unless the Pennsylvania courts had power to protect Western Union from any other claim, including the claim of the State of New York that these obligations are property 'within' New York and are therefore subject to escheat under its laws. But New York was not a party to this proceeding and could not have been made a party, and, of course, New York's claims could not be cut off where New York was not heard as a party. Moreover, the potential multi-state claims to the 'property' which is the subject of this escheat make it not unlikely that various States will claim in rem jurisdiction over it. Therefore, Western Union was not protected by the Pennsylvania judgment, for a state court judgment need not be given full faith and credit by other States as to parties or property not subject to the jurisdiction of the court that rendered it. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885.
7
It is true that, on the facts there presented, this Court said in Standard Oil Co. v. State of New Jersey, 341 U.S. 428, 443, 71 S.Ct. 822, 831, that 'The debts or demands * * * having been taken from the appellant company by a valid judgment of New Jersey, the same debts or demands against appellant (Standard Oil) cannot be taken by another state. The Full Faith and Credit Clause bars any such double escheat.' But the Court went on to point out that 'The claim of no other state to this property is before us and, of course, determination of any right of a claimant state against New Jersey for the property escheated by New Jersey must await presentation here.' Here, unlike Standard Oil, there is in reality a controversy between States, possibly many of them, over the right to escheat part or all of these funds.
8
The claims of New York are particularly aggressive, not merely potential, but actual, active and persistent—best shown by the fact that New York has already escheated part of the very funds originally claimed by Pennsylvania. These claims of New York were presented to us in both the brief and oral argument of that State as amicus curiae. In presenting its claims New York also called our attention to the potential claims of other States for escheat based on their contacts with the separate phases of the multistate transactions out of which these unclaimed funds arose, including: the State of residence of the payee, the State of the sender, the State where the money order was delivered, and the State where the fiscal agent on which the money order was drawn is located. Arguments more than merely plausible can doubtless be made to support claims of all these and other States to escheat all or parts of all unclaimed funds held by Western Union. And the large area of the company's business makes it entirely possible that every State may now or later claim a right to participate in these funds. But even if, as seems unlikely, no other State will assert such a claim, the active controversy between New York and Pennsylvania is enough in itself to justify Western Union's contention that to require it to pay this money to Pennsylvania before New York has had its full day in court might force Western Union to pay a single debt more than once and thus take its property without due process of law.
9
Our Constitution has wisely provided a way in which controversies between States can be settled without subjecting individuals and companies affected by those controversies to a deprivation of their right to due process of law. Article III, § 2 of the Constitution gives this Court original jurisdiction of cases in which a State is a party. The situation here is in all material respects like that which caused us to take jurisdiction in State of Texas v. State of Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817. There four States sought to collect death taxes out of an estate. The tax depended upon the domicile of the decedent, and this Court said that 'By the law of each state a decedent can have only a single domicile for purposes of death taxes * * *.' Id., at 408, 59 S.Ct. at 569. Thus, there was only one tax due to only one State. The estate was sufficient to pay the tax of any one State, but the total of the claims of the four States greatly exceeded the net value of the estate. For this reason, as we said, the risk of loss to the state of domicile was real and substantial, unless we exercised our jurisdiction. Under these circumstances we exercised our original jurisdiction to avoid 'the risk of loss ensuing from the demands in separate suits of rival claimants to the same debt or legal duty.' Id., at 405, 59 S.Ct. at 567. The rival state claimants here, as in State of Texas v. State of Florida, can invoke our original jurisdiction.
10
While we have previously decided some escheat cases where it was apparent that rival state claims were in the offing, we have not in any of them closed the door to the exercise of our jurisdiction. In Connecticut Mutual Life Ins. Co. v. Moore, 333 U.S. 541, 68 S.Ct. 682, 92 L.Ed. 863, we sustained the power of New York to take custody as a conservator of unclaimed funds due persons insured by that company through policies issued for delivery in New York to persons then resident in New York. In doing so we rejected an argument that the State of domicile of the insurance companies involved alone had jurisdiction to escheat. But there we were careful to point out that 'The problem of what another state than New York may do is not before us. That question is not passed upon.' Id., at 548, 68 S.Ct. at 686. Even though this reservation was made and New York only took custody of the funds, leaving the way clear for all claimants to bring action to recover them at any time, there were dissents urging that a way should be then found for the conflicting claims of States to be determined. Several years later a divided Court in Standard Oil Co. v. State of New Jersey, 341 U.S. 428, 71 S.Ct. 822, upheld the right of New Jersey to escheat certain unclaimed shares of stock and dividends due stockholders and employees of the Standard Oil Company. In that case New Jersey's jurisdiction to escheat was rested, at least in part, on the fact that Standard Oil was a domiciliary of that State. Again, however, the Court justified its conclusion by saying as to claims of other States: 'The claim of no other state to this property is before us and, of course, determination of any right of a claimant state against New Jersey for the property escheated by New Jersey must await presentation here.' Id., at 443, 71 S.Ct. at 831. Later New York sought leave to file an original action here against New Jersey, alleging a controversy between the two states over jurisdiction to take custody of monies arising out of unclaimed travelers checks, outstanding for more than 15 years, issued by American Express Company, a joint stock company organized under New York law with its principal office in New York. Answering, New Jersey pointed out that under New York's then controlling law3 it disclaimed any purpose to escheat property claimed for escheat by any other State. In this state of the New York law, we refused to take jurisdiction. State of New York v. State of New Jersey, 358 U.S. 924, 79 S.Ct. 310, 3 L.Ed.2d 299. By an act effective March 29, 1960,4 New York amended its law eliminating the disclaimer and now strongly asserts its claim to these funds under its new law.
11
The rapidly multiplying state escheat laws, originally applying only to land and other tangible things but recently moving into the elusive and wide-ranging field of intangible transactions have presented problems of great importance to the States and persons whose rights will be adversely affected by escheats.5 This makes it imperative that controversies between different States over their right to escheat intangibles be settled in a forum where all the States that want to do so can present their claims for consideration and final authoritative determination. Our Court has jurisdiction to do that. Whether and under what circumstances we will exercise our jurisdiction to hear and decide these controversies ourselves in particular cases, and whether we might under some circumstances refer them to United States District Courts, we need not now determine. Cf. Commonwealth of Massachusetts v. State of Missouri, 308 U.S. 1, 18—20, 60 S.Ct. 39, 43—44, 84 L.Ed. 3. Nor need we, at this time, attempt to decide the difficult legal questions presented when many different States claim power to escheat intangibles involved in transactions taking place in part in many States. It will be time enough to consider those complicated problems when all interested States—along with all other claimants can be afforded a full hearing and a final, authoritative determination.6 It is plain that Pennsylvania courts, with no power to bring other States before them, cannot give such hearings. They have not done so here; they have not attempted to do so. As a result, their judgments, which cannot, with the assurance that comes only from a full trial with all necessary parties present, protect Western Union from having to pay the same single obligation twice, cannot stand. When this situation developed, the Pennsylvania courts should have dismissed the case.
12
Accordingly, the judgment of the Supreme Court of Pennsylvania is reversed, and the cause is remanded to that Court for further proceedings not inconsistent with this opinion. It is so ordered.
13
Reversed and remanded.
14
Memorandum of Mr. Justice STEWART.
15
The appellant is a New York corporation with its principal office in that State. The funds representing these unpaid money orders are located there. I think only New York has power to escheat the property involved in this case. For that reason, while disagreeing with the Court's opinion, which for me creates more problems that it solves, I join in the judgment of reversal.
1
Act of July 29, 1953, P.L. 986, § 1 (27 Purdon's Statutes, § 333).
2
In its answer Western Union did claim these monies, but it has since abandoned this ground.
3
Section 1309, Abandoned Property Law, McKinney's Consol.Laws c. 1.
4
N.Y.Laws 1960, c. 307.
5
The magnitude of the problem involved is illustrated by the fact that, since 1946, at least 20 States have enacted legislation to bring or enlarge the coverage of intangible transactions under their escheat laws. Florida, 1961; Idaho, 1961; Illinois, 1961; Kentucky, 1960; Virginia, 1960; California, 1959; New Mexico, 1959; Louisiana, 1958; Oregon, 1957; Utah, 1957; Arizona, 1956; Washington, 1955; Pennsylvania, 1953; Massachusetts, 1950; Arkansas, 1949; Connecticut, 1949; New York, 1949; Michigan, 1947; North Carolina, 1947; New Jersey, 1946. Of these, 10—Arizona, California, Florida, Idaho, Illinois, New Mexico, Oregon, Utah, Virginia, and Washington—have adopted the Uniform Disposition of Unclaimed Property Act promulgated by the National Conference of Commissioners on Uniform State Laws in 1955. In addition legislation has been under consideration by other States. For discussion of this and a general description of the growing importance of these laws, see Ely, Escheats: Perils and Precautions, 15 Bus.Law. 791.
The record in this very case shows that Massachusetts is laying claim to funds of Western Union on precisely the same ground that Pennsylvania asserted here, thus bringing Massachusetts into conflict with New York's claims too.
6
In State of Texas v. State of Florida, 306 U.S. 398, 405, 59 S.Ct. 563, 567, 83 L.Ed. 817, we held that individual claimants 'whose presence is necessary or proper for the determination of the case or controversy between the states are properly made parties * * *.'
| 34
|
368 U.S. 81
82 S.Ct. 216
7 L.Ed.2d 147
INTERSTATE COMMERCE COMMISSION, Appellant,v.J-T TRANSPORT COMPANY, Inc., et al. U.S.A.C. TRANSPORT, INC., et al., Appellant, v. J-T TRANSPORT COMPANY, Inc., et al.
Nos. 17, 18.
Decided Dec. 4, 1961.
On appeals from the United States District Court for the Western District of Missouri.
[Syllabus from pages 81-82 intentionally omitted]
B. Franklin Taylor, Jr., Washington, D.C., for appellant in No. 17.
Roland Rice for appellants in No. 18.
Richard A. Solomon, Washington, D.C., for appellee United States, in both cases.
James W. Wrape, Memphis, Tenn., for appellee J-T Transp. Co., Inc., in both cases.
Nos. 49, 53, 54:
Robert W. Ginnane, Washington, D.C., for appellant in No. 53.
Roland Rice for appellants in Nos. 49 and 54.
Richard A. Solomon, Washington, D.C., for appellee United States in all three cases.
A. Alvis Layne, Washington, D.C., for remaining appellees in all three cases.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
These are appeals from judgments of three-judge district courts, 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, which set aside orders of the Interstate Commerce Commission denying applications for permits as contract carriers. 185 F.Supp. 838; 188 F.Supp. 160.
2
Appellee J—T Transport Company asked to extend its present operations as an irregular-route contract carrier of airplane parts to include carriage of aircraft landing gear bulkheads for Boeing Airplane Co. Boeing supported the application. Common carriers opposed the application, as did another carrier, U.S.A.C. Transport, Inc., appellant in No. 18. Boeing indicated it preferred the applicant over the other because of its unsatisfactory experience with the latter in other operations. Boeing indicated that contract carriage was more practicable in its experience than common carriage, as a contract carrier's operations could be better integrated with a manufacturer's production. Though the examiner recommended a grant of the permit, the Commission denied it (74 M.C.C. 324, 79 M.C.C. 695) saying that no attempt had been made to ascertain if the existing services were capable of meeting the needs of the shipper. It ruled that 'There is, in effect, a presumption that the services of existing carriers will be adversely affected by a loss of 'potential' traffic, even if they may not have handled it before.' 79 M.C.C. 695, 705. It held that the applicant had not established a need for this contract service and that the applicant had not shown 'the existing service' of the other carrier to be 'inadequate.' Id., 709. It indicated that a service 'not needed' cannot be found consistent with the public interest or the National Transportation Policy, as those terms are used in § 209(b) of the Interstate Commerce Act as amended, 71 Stat. 411, 49 U.S.C. § 309(b), 49 U.S.C.A. § 309(b). It said that the shippers did not require a distinct type of service that could not be provided by the protesting carrier, which was indeed in a position to provide any service needed and which would be adversely affected by a grant of this application, even though it never had had the business in question.
3
Appellee Raddish made application to carry canned goods as a contract carrier from three points in Arkansas and one in Oklahoma to various points in thirty-three States and to carry other goods on return. His application was supported by his prospective shippers and opposed by motor common carriers, appellants in No. 54, and by rail common carriers, appellants in No. 49.
4
Reddish showed that he delivered to customers who ordered goods in less-than-truckload amounts. These customers maintained low inventories and needed expedited deliveries in small quantities and on short notice. Some accepted deliveries only on certain days, a requirement calling for integration and coordination between shipper and customer. The shippers said that common carriage was an inadequate service for these shipments, as they were in such small lots that they often had to be carried in consolidated loads which caused delays in shipments. Moreover, it was shown that not all points would be served by one common carrier, making it necessary to unload the shipments and reload them on another carrier causing delays, misconsignment, and damage to goods. The shippers also testified that the cost of common carriage was prohibitive for less-than-truckload shipments and that if the Reddish application were denied they would use private carriage. The protesting motor common carriers testified they could render adequate service for these shipments and provide multiple pick-up and delivery services to most of the points by transferring the shipments to other carriers. The Examiner recommended that the application be granted. The Commission denied it, saying, inter alia, that the services needed by the shippers could be performed by existing common carriers, that they would be injured by the loss of potential traffic, and that the shippers' desire to obtain lower rates for less-than-truckload shipments was the primary reason for their support of the application, but was not a sufficient basis to justify a grant of authority to this contract carrier. 81 M.C.C. 35.
5
The cases turn on the meaning of language added to the Act in 1957.
6
Our decision in United States v. Contract Steel Carriers, 350 U.S. 409, 76 S.Ct. 461, 100 L.Ed. 482, held that a contract carrier, rendering a specialized service in the sense that it hauled only a limited group of commodities over irregular routes, did not become a common carrier because it reached for new business within the limits of its license. That decision caused concern to the Commission which proposed amendments to the Act.1 It proposed that § 203(a) (15) be amended so as to define a contract carrier as one who engages in transportation by motor vehicle 'under continuing contracts with one person or a limited number of persons for the furnishing of transportation services of a special and individual nature required by the customer and not provided by common carriers.' It also proposed that § 209(b) be amended by adding an additional requirement for issuance of a contract carrier permit, viz., 'that existing common carriers are unwilling or unable to provide the type of service for which a need has been shown.'
7
These amendments were vigorously opposed in some quarters.2 The addition to § 203(a)(15) was objected to on the ground that many contract carriers would be driven out of business because they could not meet the test of performing a service 'not provided by common carriers.' The change in § 209(b) was opposed because it would be impossible for a contract carrier to prove that competing common carriers were 'unwilling' to render the service and very difficult for it to prove that common carriers were 'unable' to render the service, as the applicant would have no intimate knowledge of the business of the opposing carriers.
8
The Commission bowed to these objections;3 and the bill as it passed eliminated the proposed changes except the ones that changed the result of our decision in United States v. Contract Steel Carriers, supra.4 Section 203(a)(15), however, was amended, so far as material here, by adding to the description of the term 'contract carrier by motor vehicle' one who furnishes 'transportation services designed to meet the distinct need of each individual customer.'5 And § 209(b) was amended by adding a sentence which sets forth five factors the Commission shall consider in determining whether the permit should issue:
9
'In determining whether issuance of a permit will be consistent with the public interest and the national transportation policy declared in (this Act), the Commission shall consider (1) the number of shippers to be served by the applicant, (2) the nature of the service proposed, (3) the effect which granting the permit would have upon the services of the protesting carriers and (4) the effect which denying the permit would have upon the applicant and/or its shipper and (5) the changing character of that shipper's requirements.' (Numerals added.)
10
It seems clear from these provisions that the adequacy of existing services is a criterion to be considered by the Commission, as it is instructed to consider 'the effect which granting the permit would have upon the services of the protesting carriers,' as well as the effect of a denial upon the shippers. Or to put the matter otherwise, the question of the need of the shipping public for the proposed service necessarily includes the question whether the extent, nature, character, and suitability of existing, available service makes the proposed service out of line with the requirements of the national transportation policy. But the adequacy of existing facilities or the willingness or ability of existing carriers to render the new service is not determinative. The 'effect which denying the permit would have upon the applicant and/or its shipper and the changing character of that shipper's requirements' have additional relevance. This is a phase of the problem reflected in the broadened definition of 'a contract carrier by motor vehicle'—one who furnishes transportation services 'designed to meet the distinct need of each individual customer.' § 203(a)(15). It means, we think, that the 'distinct need' of shippers for the new contract carrier service must be weighed against the adequacy of existing services. The Commission indulged in 'a presumption that the services of existing carriers will be adversely affected by a loss of 'potential' traffic, even if they may not have handled it before.' 79 M.C.C. 695, 705. The effect of the presumption is in substance to limit competing contract carriage to services 'not provided' by existing carriers—a provision that the Commission sought unsuccessfully to have incorporated into the Act. We see no room for a presumption in favor of, or against, any of the five factors on which findings must be made under § 209(b). The effect on protesting carriers of a grant of the application and the effect on shippers of a denial are factors to be weighed in determining on balance where the public interest lies. The aim of the 1957 amendments, as we read the legislative history, was not to protect the status quo of existing carriers but to establish a regime under which new contract carriage could be allowed if the 'distinct need' of shippers indicated that it was desirable.
11
We cannot assume that Congress, in amending the statute, intended to adopt the administrative construction which prevailed prior to the amendment.
12
By adding the five criteria which it directed the Commission to consider, Congress expressed its will that the Commission should not manifest special solicitude for that criterion which directs attention to the situation of protesting carriers, at the expense of that which directs attention to the situation of supporting shippers, when those criteria have contrary implications. Such a situation doubtless exists in these cases, for granting the permits might well have produced some consequences adverse to the protesting carriers, while denying them may just as certainly prove burdensome to the supporting shippers. Had the Commission, having drawn out and crystallized these competing interests, attempted to judge them with as much delicacy as the prospective nature of the inquiry permits, we should have been cautious about disturbing its conclusion.
13
But while such a determination is primarily a responsibility of the Commission, we are under no compulsion to accept its reading where, as here, we are convinced that it has loaded one of the scales. By indulging in a presumption 'that the services of existing carriers will be adversely affected by a loss of 'potential' traffic, even if they may not have handled it before,' and by assigning to the applicants the burden of proving the inadequacy of existing services, the Commission favored the protestants' interests at the expense of the shippers' in a manner not countenanced by anything discoverable in Congress' delegation to it of responsibility.
14
It is argued that the Commission, in holding that U.S.A.C. is willing and able to render the service, did not rely on the presumption. We are, however, not convinced. The Commission seems to have placed the burden of proving inadequacy of existing services on the applicant, for it said that the applicant had not shown that the service of U.S.A.C. was 'inadequate.' 79 M.C.C. 695, 709. Such a burden is improperly placed on the applicant, as the rejection of the proposed amendment to § 209(b) suggests. The capabilities of protesting carriers are matters peculiarly within their knowledge. In the Reddish case the Commission made the same error, as is evident from its statement that the 'shippers have failed to show that they have been unable to obtain reasonably adequate service upon request.' 81 M.C.C. 35, 42.
15
The proper procedure, we conclude, is for the applicant first to demonstrate that the undertaking it proposes is specialized and tailored to a shipper's distinct need. The protestants then may present evidence to show they have the ability as well as the willingness to meet that specialized need. If that is done, then the burden shifts to the applicant to demonstrate that it is better equipped to meet the distinct needs of the shipper than the protestants.
16
Moreover, as we read the Act, as amended in 1957, the standard is not whether existing services are 'reasonably adequate.' It is whether a shipper has a 'distinct need' for a different or a more select or a more specialized service. The protesting carriers must show they can fill that 'distinct need,' not that they can provide a 'reasonably adequate service.'
17
In the Reddish case the Commission ruled that the desire for lower rates offered by the applicant was irrelevant to a shipper's needs, that if the rates of existing carriers were too high, shippers should seek relief for their reduction. 81 M.C.C. 35, 42 43. We think the matter of rates is one factor to be weighed in determining the need for the new service. In a contest between carriers by motor vehicles and carriers by rail, we held in Schaffer Transportation Co. v. United States, 355 U.S. 83, 78 S.Ct. 173, 2 L.Ed.2d 117, that the ability of a particular mode of transportation to operate with a lower rate is one of the 'inherent advantages' that one type may have over another within the meaning of the Act. 54 Stat. 899, 49 U.S.C.A. note preceding section 1. By analogy, contract carriage may be more 'economical' than common carriage by motor or rail within the framework of the national transportation policy, as it is defined in the Act6—'the Commission's guide' to the public interest. McLean Trucking Co. v. United States, 321 U.S. 67, 82, 64 S.Ct. 370, 378, 88 L.Ed. 544. It would seem hardly contestable that if denial of the application meant, for example, that a shipper's costs of transportation would be prohibitive, the shipper had established a 'need' for the more 'economical' service. See Herman R. Ewell Extension—Philadelphia, 72 M.C.C. 645. This does not mean that the lawfulness of rates would be injected into certificate proceedings. The issue of whether or not the proposed service offers a rate advantage and if so whether such advantage establishes a 'need' for the service that overrides counterbalancing considerations presents issues that fall far short of a rate proceeding.
18
We agree with the court in the J—T Transport Co. case that, while the 1957 amendments changed the result of our decision in United States v. Contract Steel Carriers, supra, by giving the Commission power to limit the number of contracts which a contract carrier can maintain, the amendments in other respects put the contract carrier on a firmer footing. That court said, 'Under the statute a shipper is entitled to have his distinct needs met.' 185 F.Supp. 838, 849. We agree. We also agree that though common carrier service is reasonably adequate and though another carrier is willing and able to furnish the service, a permit to a contract carrier to furnish this particular service still might be wholly consistent with the national transportation policy defined in the Act. For it is 'the distinct need of each individual customer' that the contract carrier is designed to fill. § 203(a)(15). And 'the changing character' of the shipper's 'requirements' is a factor to be weighed before denying the application. § 209(b). Hence the adequacy of existing services for normal needs and the willingness and ability of an existing carrier to render the service are not the end of the matter. The 'distinct need' of the shipper may nonetheless not be served by existing services, if the new service is better tailored to fit the special requirements of a shipper's business, the length of its purse, or the select nature of the delivery service that is desired. The fact that the protesting carriers do not presently perform the service being tendered and that the grant of the application would not divert business from them does not necessarily mean that the grant would have no effect 'upon the services' of the protesting carriers within the meaning of § 209(b). But where the protesting carriers do not presently have the business, it would seem that the grant of it to a newcomer would have an adverse effect on them only in the unusual case.
19
We intimate no opinion on the merits, for it is the Commission, not the courts, that brings an expertise to bear on the problem, that makes the findings, and that grants or denies the applications. Yet that expertise is not sufficient by itself. Findings supported by substantial evidence are required. Public Service Comm'n v. United States, 356 U.S. 421, 427, 78 S.Ct. 796, 799, 2 L.Ed. 886; United States v. United States Smelting Co., 339 U.S. 186, 193, 70 S.Ct. 537, 542, 94 L.Ed. 750.
20
Since the standards and criteria employed by the Commission were not the proper ones, the causes must be remanded for further consideration and for new findings. American Trucking Assns. v. United States, 364 U.S. 1, 15—17, 80 S.Ct. 1570, 1578, 1579, 4 L.Ed.2d 1527. Accordingly the judgments below are affirmed.
21
Affirmed.
22
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
23
These are related appeals from a decree of a District Court setting aside an order of the Interstate Commerce Commission denying an application for a contract-carrier permit under the 1957 amendments to §§ 203(a)(15) and 209(b) of the Interstate Commerce Act, 49 U.S.C. §§ 303(a)(15), 309(b), 49 U.S.C.A. §§ 303(a)(15), 309(b). At issue are the District Court's determinations that the Commission exceeded its authority under those provisions in four particulars. First, by considering the adequacy of existing carriage for the transportation service proposed, the Commission is said to have injected an inadmissible 'sixth criterion' into the five factors designated by Congress in the revised § 209(b). Second, the Commission was held to have imposed on the applicant a burden of proving the inadequacy of existing services that Congress had specifically refused to approve. Third, the court concluded that the Commission's reliance on the capacity of existing carriers to meet the 'reasonable transportation needs' of the shipper did not meet the standard of specific needs in amended § 203(a)(15). Fourth, the Commission is charged with invoking an impermissible presumption that an existing carrier willing and able to perform a transportation service it has not previously undertaken will be adversely affected by the loss of potential traffic.
24
Disposition of these conclusions turns first on a construction of the 1957 amendments in the context of the Motor Carrier Act of 1935, apart from which they are unintelligible; next upon due consideration of what the Commission has here undertaken to do, as disclosed in a fair reading of its final report denying the application; and, most importantly, on appropriate regard for the limits on judicial review of such Commission action as is now before us.
I.
25
The Motor Carrier Act, this Court has noted, was passed at a time when 'the industry was unstable economically, dominated by ease of competitive entry and a fluid rate picture. And as a result, it became overcrowded with small economic units which proved unable to satisfy even the most minimal standards of safety or financial responsibility. So Congress felt compelled to require authorization for all interstate operations to preserve the motor transportation system from overcompetition * * *.' American Trucking Ass'n v. United States, 344 U.S. 298, 312—313, 73 S.Ct. 307, 315, 316, 97 L.Ed. 337.
26
These were indeed the conditions that prompted legislative recommendations by the greatly esteemed Federal Coordinator of Transportation, Joseph B. Eastman. See S.Doc. No. 152, 73d Cong., 2d Sess. (1934). One of the prime purposes of the measure he proposed was to control the number and scope of contract-carrier operations in order to preserve and protect common-carrier service:
27
'These private and contract carriers might be ignored if they did not have a tendency to demoralize or impair the system of common carriage which undertakes to serve all alike and is of prime importance to the county. * * *
28
'The contract carrier may differ from the common carrier only in the fact that he undertakes to skim the cream of the traffic and leave the portion which lacks the butterfats to his common-carrier competitor. Obviously such operations can have very unfortunate and undesirable results.
29
'* * * So far as regulation is directed against private and contract operators, it should be for the chief purpose of protecting the common carriers against unfair and demoralizing competition.' Report of the Federal Coordinator of Transportation, 1934, H.R.Doc. No. 89, 74th Cong., 1st Sess. 17 (1935).
30
Coordinator Eastman's proposal was enacted by Congress into the Motor Carrier Act of 1935 (now Interstate Commerce Act, Part II). See H.R.Rep. No. 1645, 74th Cong., 1st Sess. 5 (1935); S.Rep. No. 482, 74th Cong., 1st Sess. 2 (1935). As enacted, it laid far more stringent controls upon common carriers than on contract carriers. The former were required to hold themselves out to the general public, §§ 203(a)(14), 207, under just and non-discriminatory tariffs, §§ 216(d), 217, while the latter were uncontrolled in their charges above a reasonable minimum, § 218. Motor carriers owning more than 20 vehicles, which presumably included most common carriers and few if any contract carriers, had to obtain Commission approval before going out of business, Interstate Commerce Act, Part I, § 5, and see 49 CFR §§ 179.2—179.5 (1961). No limitation was laid on the types of traffic for which contract carriers could compete, and indeed there has never developed any inherent difference in the operations performable by common or contract carriers.1 Instead, Congress chose to protect common carriers from destructive competition by entrusting the Interstate Commerce Commission with the administration of certain generalized qualifications needed to obtain a contract-carrier permit.
31
As originally enacted, 49 Stat. 543, 544 (1935), § 203(a)(15) provided:
32
'The term 'contract carrier by motor vehicle' means any person, (other than a common carrier) * * *, who or which, under special and individual contracts or agreements, and whether directly or by a lease or any other arrangement, transports passengers or property in interstate or foreign commerce * * *.'
33
Section 209(b), as enacted by 49 Stat. 543, 553 (1935), authorized the Commission to issue permits to contract carriers when it appeared, inter alia,
34
'* * * that the proposed operation, to the extent authorized by the permit, will be consistent with the public interest and the policy declared in section 202(a) of this part (the 1935 forerunner of the National Transportation Policy adopted in 1940) * * *.'
35
The design of these sections was explicated by the Commission shortly after their passage, in Contracts of Contract Carriers, 1 M.C.C. 628 (1937). This was a rule-making proceeding under § 209(b) to attach limitations to contract-carrier permits in order to forestall transgression upon common carriage. The reasons given for promulgation of the rule afford persuasive evidence of the contemporaneous understanding of the Act:
36
'The term 'contract carrier' was coined in State statutes for the regulation of motor carriers. In a number of these statutes, protection of the common carrier was expressly recited as the purpose of regulating the contract carrier. In others, this purpose appeared by necessary implication. * * *
37
'This principle is inherent in the Motor Carrier Act, 1935. The underlying purpose is plainly to promote and protect adequate and efficient common-carrier service by motor vehicle in the public interest, and the regulation of contract carriers is designed and confined with that end in view. * * *
38
'* * * The patent object of Congress is to protect the common carriers against cut-throat competition.' 1 M.C.C., at 629. See also Filing of Contracts by Contract Carriers, 20 M.C.C. 8, 11 (1939).
39
After reciting the relative freedom from regulation enjoyed by contract carriers, the Commission concluded, in terms peculiarly appropriate to the present controversy:
40
'This inherent and inevitable disadvantage of the common carriers is accentuated and becomes a source of positive peril to them when competitors, claiming to be contract carriers, are promiscuous in their dealings with shippers (who) * * * may play the contract carrier against the common carrier * * * with the result that the unfair and destructive competition which Congress sought in the act to abate is instead intensified * * *.' 1 M.C.C., at 631.
II.
41
In acting upon applications for contract-carrier permits, the Commission has from the beginning regarded the adequacy of existing common-carrier facilities to be of crucial importance in determining consistency with the public interest as defined by the history and purposes of the Act. In C. & D. Oil Co. Contract Carrier Application, 1 M.C.C. 329, 332 (1936), it early stated a guiding principle that has been reaffirmed many times since:
42
'We think that, in order to foster sound economic conditions in the motor-carrier industry, existing motor carriers should normally be accorded the right to transport all traffic which they can handle adequately, efficiently, and economically in the territories served by them, as against any person now seeking to enter the field of motor-carrier transportation in circumstances such as are here disclosed.'
43
A review of Commission action from 1935 to 1957 discloses that this principle has been unwaveringly applied in circumstances identical or nearly so to those in the present case, and that its application has produced consistent rulings exactly akin to those now challenged here.
44
C. & D. Oil Co. Contract Carrier Application, supra. The desire of a shipper to engage the services of a particular carrier, although based on sound and legitimate business reasons, does not control decision as to transportation needs, and is not, standing alone, enough to require a finding that the proposed service would be consistent with the public interest or national transportation policy.
45
R. L. Smith Contract Carrier Application, 1 M.C.C. 717 (1937). Applicant proposed to carry only peak-load supplies not presently carried by protestant common carriers, but the permit was denied because the existing carriers 'may augment their facilities at will through the purchase or lease of additional equipment and may thereby furnish such emergency service.' (At 719.) A loss of potential traffic was thus made determinative.
46
Eastern Shore Oil Co. Contract Carrier Application, 7 M.C.C. 173, 175—176 (1938). There were several common carriers with authority and facilities to handle the proposed traffic, although none had in fact ever carried any of it. The Commission concluded that no need for the service had been shown, consistent with the public interest and the national transportation policy, and reaffirmed its ruling in C. & D. that the desire of a shipper to engage a particular carrier was insufficient ground for the granting of a permit.
47
William Heim Certage Co., Extension of Operations Indianapolis, 20 M.C.C. 329 (1939). Applicant proposed to dedicate three trucks to shipper's exclusive use. There was testimony that existing common carriers had the capacity to undertake the traffic. The shipper sought to overcome this by claiming (1) that because of the variety of goods shipped, common-carrier rates would be prohibitive, and (2) that if the application was denied, the shipper would not use common-carrier service but would probably initiate private carriage. Nevertheless the Commission denied the permit, holding that the burden was on the applicant to show that its proposed service 'would tend to correct or substantially improve' a deficiency in existing service. The 'mere desire' of a shipper to engage a particular carrier was again rejected as a determining factor.
48
Horace L. Daum Extension of Operations—Illinois, 22 M.C.C. 366 (1940). Shipper had been using its own trucks, and supported this application by stating that, if refused, it would continue to use its own facilities. The protestant common carrier by motor vehicle had established that its equipment was not being operated to full capacity, and that it was able and willing to purchase additional equipment if needed. Reaffirming C. & D., the Commission denied the permit.
49
N. S. Craig Contract Carrier Application, 31 M.C.C. 705 (1941). The Commission had before it the amendments introduced by the Transportation Act of 1940, and had to determine whether the lines it had theretofore drawn were altered by the deletion of the word 'special' from § 203(a)(15)2 or by the adoption of the National Transportation Policy in its present form.3 It concluded from an examination of the legislative history that, far from there being a change, Congress had approved the distinctions employed by the Commission,4 which it restated in terms that are now unmistakably entrenched in the 1957 amendment to § 203(a)(15): '(T)he statutory definitions as now amended are essentially declaratory of the common law. In other words, the fact or not of a public holding out remains the final or ultimate test of common carriage.' (At 710.) Numerous secondary tests had been used to distinguish contract carriage, but each shared a common feature: the criterion of 'specialization, either in the nature of the physical operation, or in respect of the shippers served, without some showing of which contract carriage cannot be found to exist.' (At 711; italics in report.) A carrier might engage in specialized operations and remain a common carrier if it held itself out to perform similar service for any shipper that might want it, but unless it did so specialize it could not be a contract carrier. The specialization the Commission had in mind
50
'* * * might take the form of specialized physical operations designed to meet the peculiar needs of particular shippers or might consist in the rigid devotion of an otherwise ordinary physical service to a single shipper or very limited number of shippers.' (At 708.)
51
This, it will be seen, is an almost literal paraphrase of what later emerged as the 1957 amendment to § 203(a)(15).
52
Having anticipated explicit congressional purpose in this manner, the Commission continued to adhere to its earlier rulings as consistent with that purpose.
53
Samuel I. Major Contract Carrier Application, 43 M.C.C. 795, 799—800 (1944). No showing of consistency with public interest when there are common carriers authorized, equipped, and willing to handle the traffic.
54
Willard J. Hibbard Extension of Operations—Lime, 47 M.C.C. 311 (1947). Shipper emphatic that only a contract carrier will do, and that it will not use the services of a common carrier. The Commission found from the evidence that existing common carriers could satisfactorily perform the job: 'The fact that existing carriers have not participated in the traffic, in the absence of any showing that they are unable or unwilling to provide a service as required, does not warrant a grant of authority to a new carrier.' (At 314.) B & F Bus Service, Inc., Contract Carrier Application, 53 M.C.C. 501 (1951). In a situation remarkably like the present one, the Commission devised and applied criteria virtually identical to those adopted by Congress in its 1957 amendment to § 209(b), and denied the application. The contract carrier there proposed an express bus service for the employees of a plant in Clifton, New Jersey, to carry them back and forth from New York. The protestant common carriers established that one or another of them could carry the passengers within two miles of the plant where they could obtain a transfer on a local crosstown bus to and from the plant. Two protestants offered to run an express service if 30 passengers could be assured. Each protestant was desirous of obtaining the traffic and thought it necessary for his business to do so.
55
In resolving the issue, the Commission foresaw the essentials of the third and fourth criteria now explicitly commended to their consideration by Congress in § 209(b):
56
'Before the proposed operation may be authorized it must be found consistent with the public interest and the national transportation policy. Among the factors to be considered in making such determination are (1) the manner and extent such service will affect the operations of competing common carriers and their patrons, (2) the nature and extent of the inconvenience prospective patrons of the proposed contract-carrier service will suffer if it is not authorized and, conversely, the benefits such service will afford them, and (3) the ascertainment of the public interest from a weighing of these respective facts.' (At 504—505.)
57
Applying this formula to that case, the Commission determined that the potential damage to the common-carrier protestants from loss of a new service and others like it in the future, outweighed the advantage in convenience offered by the contract-carrier applicant. The terms in which it drew the balance are of especial pertinency to our controversy:
58
'(W)here a proposed contract-carrier service would substantially impair the common-carrier service upon which the public generally must rely, either immediately or potentially through a weakening of the financial ability of the common carriers to meet the needs of the public, issuance of a permit would be found inconsistent with the public interest.' (At 505.)
59
This mode of adjusting conflicting interests whose accommodation was later explicitly committed to the Commission by Congress furnishes strong evidence of the way in which those factors are appropriately evaluated. Subsequent rulings afford impressive proof of this uniform administrative practice.
60
Kilmer Transp. Co. Extension—Uniontown, 53 M.C.C. 561 (1961). This is another case very close to the present one on its facts. Shippers of fragile earthenware products, requiring special handling and equipment, desired to use a contract carrier which had designed special trailers, trained experienced drivers, and proposed to dedicate its equipment to the exclusive use of the shippers. There were a number of common carriers authorized and with the capacity to carry this traffic. The shippers had experienced some delays with common carriage and wished the flexibility proposed by the applicant of picking up portions of a load at different factories. The application was denied, the Commission stating that 'In the absence of a showing that the proposed service would provide shipper with something substantial in the way of service which existing carriers are unable or unwilling to provide, the application must be denied.' (At 571.)
61
Beatty Motor Express, Inc., Extension—Soap to Pittsburgh, Pa., 66 M.C.C. 160 (1955). The application was supported by a shipper who had had a satisfactory experience with the applicant and wished to continue its service. In refusing the requested permit, the Commission recapitulated the standards it was applying, clarifying especially the matter of burden of proof:
62
'It is clear from the record that existing carriers have the authority, equipment, and facilities necessary to transport all of the considered commodities from and to the points involved. * * * (N)or is there any showing that the proposed service is so unique or so specialized that the existing carriers are unable to provide the supporting shipper with a reasonably satisfactory service. There is no doubt that a grant of authority to transport the involved soap products and preparations would be convenient to the supporting shipper, but the record is lacking in proof that the shipper will be prejudiced or handicapped unless the authority sought is granted. Past use of a motor-carrier service, coupled with the mere preference for the service of a particular carrier over that of existing carriers, is not sufficient to warrant a grant of authority. We have consistently held that existing carriers should be accorded the right to transport all traffic which, under normal conditions, they can handle adequately, efficiently, and economically in the territory served by them, without the competition of a new operation.' (At 162.)
63
Overland Freight Lines, Inc., Extension—Kentucky, 69 M.C.C. 143, 148 (1956). An application was denied despite evidence that the placement of common carriers at the shipper's platform had involved delays requiring payment of overtime that raised costs on low-sales-value units of merchandise. '(W)e cannot reasonably conclude that their placements, as a whole, have been so unreasonably delayed or so inconveniently made as to merit a finding that the services of these carriers have been inadequate.' Past diligence and future willingness to spot equipment at the plant were shown and relied on to deny the application.
64
Refiners Transport, Inc., Extension—Missouri, 71 M.C.C. 272 (1957). Issuance of a permit was refused despite (1) evidence of three occasions of unsatisfactory shipment by the protestants, and (2) a statement by the consignee that it would do further business with the shipper only if the applicant's transportation service was obtained.
III.
65
The law and practice governing contract-carrier applications, as it emerged from the language, history, and purposes of the Motor Carrier Act and from consistent administrative construction between 1935 and 1957, may be summarized as follows. Strictly regulated common carriage was considered the backbone of the motor transport industry. Contract carriers might be able to perform certain specialized transportation tasks more easily than common carriers, and when this was so they should be allowed to enter the field. In order to preserve the financial and operational capacity of common carriers to perform the variety of tasks required by the public, however, applicants for a contract-carrier permit must not be awarded business that existing common carriers are equipped and obliged in their certificates to handle. Accordingly, the applicant must first demonstrate that he proposes a specialized undertaking. Protestants may then present evidence that they have the capacity and the desire to carry the particular traffic proposed. If that is done, the burden shifts back to the applicant to demonstrate that the protestants are not so well equipped as he to meet the needs of the shipper. Shipper preference is not sufficient. Unless the applicant can show that its service will be substantially superior to that offered by the protestants, the issuance of a permit must be refused, and this although the protestant may never have carried the traffic before and may have no assurance that it will be offered him once the application is denied. Only thus, the Common had concluded, could the policy of Congress to preserve a viable system of common carriage be satisfied.
66
It is this body of precedent, conscientiously developed over a period of years to effectuate the policies formulated in the Motor Carrier Act for Commission enforcement, that we are told was overturned by congressional amendment in 1957. And so we must turn to the terms, origin, and purpose of those amendments.
67
As now amended by 71 Stat. 411 (1957), § 203(a)(15), 49 U.S.C. § 303(a)(15), 49 U.S.C.A. § 303(a)(15), reads as follows:
68
'The term 'contract carrier by motor vehicle' means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than as a common carrier) * * * under continuing contracts with one person or a limited number of persons either (a) for the furnishing of tranportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.' (Changes italicized.)
69
71 Stat. 411 (1957) added to § 209(b), 49 U.S.C. § 309(b), 49 U.S.C.A. § 309(b), the following provision:
70
'In determining whether issuance of a permit will be consistent with the public interest and the national transportation policy declared in this Act, the Commission shall consider (1) the number of shippers to be served by the applicant, (2) the nature of the service proposed, (3) the effect which granting the permit would have upon the services of the protesting carriers and (4) the effect which denying the permit would have upon the applicant and/or its shipper and (5) the changing character of that shipper's requirements.'5
71
From the italicized changes it is said to follow that the Commission may no longer assign due weight, in its judgment, to the ability of existing common carriers to furnish substantially the transportation service proposed. This is so, it is argued, because factors (3) and (4) are placed in conjunctive equipoise, demanding a balance on untilted scales. And the fulcrum, to complete the metaphor, is located by this argument precisely at the 'distinct need' of the shipper referred to in amended § 203(a)(15).
72
If the issue before us were only whether the language of the amendments could bear this construction, there would be little argument. But even if the suggested interpretation were supported by the plain meaning of the words, this would not advance our inquiry very far. For the 'plain meaning' rule as an automatic canon of statutory construction is mischievous and misleading and has been long ago rejected. See Boston Sand Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 73 L.Ed. 170; United States v. American Trucking Ass'ns, 310 U.S. 534, 542—550, 60 S.Ct. 1059, 1063—1067, 84 L.Ed. 1345. Words are seldom so plain that their context cannot shape them. Once the 'tyranny of literalness' is rejected, United States v. Witkovich, 353 U.S. 194, 199, 77 S.Ct. 779, 782, 1 L.Ed.2d 765, the real meaning of seemingly plain words must be supplied by a consideration of the statute as a whole as well as by an inquiry into relevant legislative history. Indeed when there is need for aid, we may turn to 'all the light relevantly shed upon the words and the clause and the statute that express the purpose of Congress,' United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260.
73
The starting point for determining legislative purpose is plainly an appreciation of the 'mischief' that Congress was seeking to alleviate. In this instance, fortunately, it is not hard to find, for the Court itself exposed it in United States v. Contract Steel Carriers, 350 U.S. 409, 76 S.Ct. 461, 100 L.Ed. 482. The Commission had there determined that a contract carrier had, through active solicitation of some 69 transportation contracts, so expanded its business as to become indistinguishable in operation from a common carrier, and ordered it to cease and desist. This Court affirmed reversal of that order, relying on § 209(b) as it was then written6 to declare that 'A contract carrier is free to aggressively search for new business within the limits of his license.' 350 U.S., at 412, 76 S.Ct. at 463.
74
The latitude thus authoritatively recognized in contract carriers to engage essentially in common carriage without at the same time subjecting themselves to regulation as common carriers, was the mischief that prompted the Commission to seek a restrictive rewriting of §§ 203(a)(15) and 209(b). 70 I.C.C.Ann.Rep. 162 (1956). Chairman Clarke of the Commission testified in the Senate hearings on the Commission's proposed bill that, as matters then stood, contract-carrier expansion could impair the ability of common carriers to offer service to the general public, particularly to the small shipper who could not afford the services of a contract carrier. The Commission feared that the inherent advantages of contract carriers would permit them to 'encroach upon the operations of the common carriers and skim off the cream of the traffic upon which they depend to support their overall service to the public.'7
75
This clearly was the apprehended evil that prompted a favorable report of the amendments. S.Rep.No. 703, 85th Cong., 1st Sess. 1, 3, 7 (1957), U.S.Code Cong. & Adm.News 1957, p. 1599. As phrased in the House Report, the freedom accorded contract carriers in the Contract Steel decision 'obliterates the distinction which Congress intended to make between common and contract carriers, and opens the door to unjust discrimination among shippers.' H.R.Rep.No. 970, 85th Cong., 1st Sess. 3 (1957). In presenting the bill that was adopted by Congress, Senator Smathers, the Senate Subcommittee Chairman, thus stated the need it was designed to fulfill:
76
'Unlimited diversion of traffic from common carriers to contract carriers could impair the common carriers' ability to render adequate service to the general public; consequently, a more precise definition of contract carriage in the Interstate Commerce Act is deemed necessary.
77
'The decision of the Supreme Court clearly means that the Congress should do something to correct the situation.' 103 Cong.Rec. 14035, 14036 (1957).
78
The 'more precise definition of contract carriage' in the resulting § 203(a) (15) was plainly intended to restrict the opportunities of contract carriers, not to enhance them.
79
To be sure, the addition of the five criteria for Commission consideration in the amendment to § 209(b) was not explicitly responsive to the Contract Steel decision. Neither the House nor the Senate Report makes any mention of the meaning or purpose of the addition. The criteria were not contained in the bills, S. 1384 and H.R. 5123, 85th Cong., 1st Sess. (1957), as initially proposed by the Commission. They emanated instead from a suggestion by the Contract Carrier Conference, an appellee in this case; and there is language in the testimony of its General Counsel, Clarence D. Todd, before the Senate Subcommittee, from which support is now drawn for the appellees' position:
80
'(T)he primary thing that we have always felt the Commission should do in those cases is consider not only the effect of granting this authority on the common carrier—they do that in each and every case—but to consider the effect denial will have on the contract carriers; the public interest is something to be balanced, and we think that both of those matters should be taken into consideration.' Senate Hearings 300.
81
These observations, it will be noted, did not address themselves to the effect of a denial on the shipper, which is at issue here. Consideration of the shipper's needs was not adverted to in the recommendations made by the Contract Carrier Conference, see Senate Hearings 305; it was added by the Subcommittee. In any event, the 'balance' to be struck was not defined, nor the process by which it was to be determined. As a matter of fact, the contract carriers appear to have accepted the existing Commission practice; they neither asked for nor anticipated relaxation of it:
82
'The amendment suggested by the contract carriers would still require proof that the proposed service is 'consistent with the public interest and the national transportation policy' but it sets forth certain matters which the Commission should consider in determining this question. We do not believe that this amendment would make it any easier for our contract carriers to obtain new authority. * * * All it would do would be to require the Commission to give consideration to factors which, in our opinion, are important to the public interest.' Senate Hearings 304.
83
That this was Congress' understanding of the addition is evidenced by Senator Smathers' explanation in recommending its adoption: 'In this, the Committee is proposing to give the Commission more helpful standards than are contained in the present law.' 103 Cong.Rec. 14036 (1957). Like evidence is contained in a letter from Chairman Clarke to the House Committee, stating the Commission's belief 'that H.R. 8825 (the bill amended by the Senate as it eventually passed) is an improvement over H.R. 5123, submitted by the Commission in draft form.' H.R.Rep. No. 970, 85th Cong., 1st Sess., Appendix (1957). This is hardly the language of a loser. If, in construing legislation, we are to look to the sponsors of a bill to determine its meaning, Schwegmann Bros. v. Calvert Corp., 341 U.S. 384, 394—395, 71 S.Ct. 745, 750 751, 95 L.Ed. 1035, these statements should leave no doubt that the addition of the five criteria to § 209(b) worked no change in the Commission's long-standing practice of preferring available common carriers to contract-carrier applicants.
84
These particularized indications are confirmed and reinforced by the legislative history as a whole for precluding the view, underlying the District Court's decision, that the 1957 amendments introduced a radical departure in regulatory policy. As we have seen, the Commission had, in advance of the amendments, developed and applied the criteria at issue in this case, and had struck the same balance there as here. B & F Bus Service, Inc., Contract Carrier Application, supra. Neither this leading Commission disposition, nor any other to the same effect, was criticized or even mentioned to the subcommittee that drafted the amended bill. Had the Commission, which maintained a representative throughout the Senate hearings, suspected that its practice in this regard was being overturned, it would scarcely have given the unqualified approval that it did to the final bill. See H.R.Rep. No. 970, 85th cong., 1st Sess. 2 (1957); S.Rep. No. 703, 85th Cong., 1st Sess. 6 (1957); 103 Cong.Rec. 14035 (1957) (remarks of Sen. Smathers). On the contrary, it had good reason for assuming that its practice was being approved. The report that issued from the hearings contained the following endorsement:
85
'Your committee is of the opinion that the public interest in a sound transportation system, and particularly in a stable and adequate system of common carriage, in the light of the objectives of he national transportation policy, require that he bill, as amended, be passed.' S.Rep. No. 703, 85th Cong., 1st Sess. 7 (1957).
86
Furthermore, the very same session of Congress that passed the amendments here in issue also amended § 218(a), by 71 Stat. 343 (1957), 49 U.S.C. § 318(a), 49 U.S.C.A. § 318(a), to require contract carriers to file actual rather than minimum rates or charges. This legislation was requested by the Commission, 70 I.C.C.Ann.Rep. 168—169 (1956), and recommended by Senator Smathers' Subcommittee, S.Rep. No. 335, 85th Cong., 1st Sess. 2 (1957), to eliminate a competitive advantage held by contract carriers. It should be construed in pari materia with the amendments to §§ 203(a)(15) and 209(b). That the 1957 Congress shared the original understanding of the Motor Carrier Act's purpose is manifested in the Senate Report, at 2:
87
'The underlying purpose of the Motor Carrier Act (pt. II of the Interstate Commerce Act) is the promotion and protection of adequate and efficient common-carrier service by motor vehicle in the public interest. The regulation of contract carriers was designed with that end, among others, in view.'
IV.
88
The foregoing distillation of statutory purpose from the legislative history of the amendments is not affected by the deletion from the bill of language initially submitted by the Commission. In its original form, S. 1384 would have amended the definition of a contract carrier in § 203(a)(15) to make it one engaging in transportation under contracts for the furnishing of special and individual services required by the customer 'and not provided by common carriers.' The Commission bill would have also amended § 209(b) to require a showing by a contract-carrier applicant 'that existing common carriers are unwilling or unable to provide the type of service for which a need has been shown.'8 The quoted language was objected to by the Justice Department, Senate Hearings 10—11, and deleted by the Senate Subcommittee, S.Rep. No. 703, 85th Cong., 1st Sess. 3 (1957), as 'unduly restrictive' of contract carriage. This does not affect construction of the amendments as they emerged in final form, so far as they are relevant to our problem. The fact that the Commission withdrew its initial suggestion for increased restrictions on contract carriage hardly affords the basis for a conclusion that existing restrictions were legislatively disapproved or narrowed.
89
In truth, the Commission's language was deleted because it was thought to place an impossible burden of proof on an applicant, of demonstrating a state of mind ('unwilling'), or of facilities ('unable'), entirely within the knowledge of the protestant. Thus, very early in the Senate hearings, before any other witness had been heard from, Chairman Clarke withdrew the 'unwilling' language from the suggested amendment to § 209(b) 'because of the very difficult burden of proof that would be imposed on applicants * * *.' Senate Hearings 22. Later on, the representative of the Contract Carrier Conference asked for deletion of the 'not provided' language, supra, from the amendment to § 203(a)(15) because it presented the very same burden of proof problem. Senate Hearings 294—295. The Commission subsequently recommended this deletion because the language was 'not necessary to carry out the purpose of the bill * * *.' Senate Hearings 43 44. See also S.Rep. No. 703, 85th Cong., 1st Sess. 5 (1957).9
V.
90
An amendment is not to be read in isolation but as an organic part of the statute it affects. An amendment is not a repeal. Even when plain words are suggestive of a change in policy, they are not to be construed as such if there has been a history of consistent contrary legislative policy. Boston Sand Co. v. United States, 278 U.S. 41, 49 S.Ct. 52, 73 L.Ed. 170; Guessefeldt v. McGrath, 342 U.S. 308, 313—315, 72 S.Ct. 338, 341—342, 96 L.Ed. 342.
91
The Interstate Commerce Committees that considered these amendments were addressing themselves to a limited problem laid bare by the Contract Steel decision. It would be heedless of the practicalities of legislative procedure to assume that these experienced committees chose to use the occasion to overturn a consistent pattern of statutory regulation without inviting the views of the Commission, without undertaking any review of Commission precedents, and without selecting a language plainly evincing a purpose to change the law in this respect. To the contrary, it seems clear that these careful architects of motor-carrier regulation fashioned amendments that fit harmoniously into the prior law. They did not inadvertently add a colonial wing to a gothic cathedral.
VI.
92
What has been said disposes of the contention that the Commission erroneously imported a 'sixth criterion' of the adequacy of existing common-carrier services into its consideration of this application. It did not. That criterion is implicit in the third factor enunciated in amended § 209(b): 'the effect which granting the permit would have upon the services of the protesting carriers.' This has always been a crucial consideration in contract-carrier proceedings, and nothing in the amendments intimates a change. The fundamental difficulty with the District Court's judgment in this case is that it rests upon a mistaken apprehension that the 1957 amendments had eliminated preference for existing common-carrier service as a permissible determinant of Commission action. Thus it characterized the criteria in § 209(b) as designed 'to insure that their (applicant's and shipper's) interests would receive the same consideration and be weighed in the same balance as those of opposing carriers.' 185 F.Supp. 838, 848 (W.D.Mo.1960). This was a destructive error.
93
There remain three further grounds on which the District Court invalidated the Commission's order.
94
(1) The court held that the Commission had imposed on the applicant the precise burden of proof proposed in the rejected language of its bill, that existing carriers were unable or unwilling to provide the transportation service applied for. Had the Commission done this it would have been in clear error. It did not do so.
95
The trial examiner's findings and recommended order were first reviewed by Division 1 of the Commission. It held in part that 'the burden is upon an applicant seeking contract-carrier authority, as well as one seeking common-carrier authority, to establish, among other things, that there is a need for the service proposed which existing carriers cannot or will not meet. * * * A service not needed cannot be found consistent with the public interest or the national transportation policy.' 74 M.C.C. 324, 328 (1958). This statement is perfectly consistent with placing the burden of proving its willingness and ability on the protestant, leaving the applicant to go forward with a demonstration of its superior capacity to meet the transportation needs of the shipper.10 On reconsideration by the full Commission, a statement of like purport was made: '(W)e cannot find that existing service has been shown to be inadequate.' 79 M.C.C. 695, 709 (1959).
96
The court seems to have feared that the Commission was in fact placing a fuller and impermissible burden on applicants, and turned to later Commission dispositions to confirm its suspicions. In Roy D. Yiengst Common Carrier Application, 79 M.C.C. 265, 268 (1959), it found a statement that there had been no 'showing that the existing carriers are unwilling or unable' to provide the service. But a possibly careless phrase is not conclusive of what the phraser is deciding. If it were, our own opinions might at times be used to bind our hands in later decisions. Had the District Court looked behind the words employed in the Yiengst decision, supra, it would have discovered that they were used as a shorthand description of a more complicated allocation of the burden of proof; for the protestants there had come forward and shown their experience and capacity to handle the traffic, and it was the applicant's subsequent assertion of its superiority that was considered insufficient to overcome this showing. The same thing was true in Carolina Haulers, Inc., Contract Carrier Application, 76 M.C.C. 254, 256 (1958), likewise improperly relied on by the District Court.
97
We should judge a challenged order of the Commission by 'the report, read as a whole,' United States v. State of Louisiana, 290 U.S. 70, 80, 54 S.Ct. 28, 33, 78 L.Ed. 181, and by the record as a whole out of which the report arose. When that is done in this case, it becomes apparent that the Commission did not assign a statutorily impermissible burden of proof to the applicant.
98
The Commission's final report found from the whole record that the protesting carrier was in fact able and willing to perform the proposed transportation service in the following respects, each of which is set forth explicitly in the report. (1) U.S.A.C., the protestant, is a specialized common carrier in he aircraft field, with approximately 60 percent of its present traffic consisting of fragile parts, like the landing-gear bulkheads whose transportation is needed for Boeing Airplane Company, the shipper. (2) U.S.A.C. is accustomed to modifying its equipment to meet specific needs, and can fashion its services to meet the shipper's production schedules. (3) Specifically, as concerns this traffic, 79 M.C.C., at 708,
99
'U.S.A.C. holds the operating authority necessary to furnish the needed service. Its drivers have security clearance; it has equipment suitable for transporting aircraft assemblies, parts, and equipment; and, if the supporting shippers will furnish it with specifications for the fixtures necessary to handle their particular traffic, it will modify as many pieces of its equipment as is necessary to provide adequate service. Furthermore, it is willing to dedicate certain of its trailers to the exclusive use of each of the shippers.'
100
It is difficult to conceive of more explicit findings, or to quarrel with the Commission's conclusion from them that 'U.S.A.C. is in a position to provide any service that is needed. * * *' 79 M.C.C., at 707. The findings, moreover, find ample support in the extensive and detailed testimony of Mr. Decker, in charge of fleet control and operations for U.S.A.C. After the burden of production was placed on the protestant to show in what respects it was capable of handling the disputed traffic, the Commission surely exceeded no statutory prohibition in shifting to the applicant the burden of persuasion of its substantial superiority.
101
(2) The District Court was persuaded, however, that the Commission had imposed too lenient a burden of production on the protestant, to show merely that 'available common-carrier service was reasonably adequate to meet the transportation needs involved.' 79 M.C.C., at 701. It concluded that the proper standard was the one enunciated by Congress in amended § 203(a)(15), of meeting the 'distinct need' of each shipper. And it determined that the Commission had not employed that standard: 'No consideration was given to the special services which in fact could not be supplied by a common carrier.' 185 F.Supp. at 850. A review of the report and the record, judged by the statute's requirements, does not sustain this holding.
102
In the first place, the Commission made the precise finding required by the court under § 203(a)(15): 'Plainly, there is no warrant on these records for a finding that the supporting shippers require a distinct type of service that cannot be provided by U.S.A.C. To the contrary, the very business of U.S.A.C. is the transportation of the type of traffic involved.' 79 M.C.C., at 709. This finding was itself a conclusion from the detailed enumeration of U.S.A.C. capabilities quoted previously. And there was substantial evidence in the record to support the conclusion that the shipper would be as well served by U.S.A.C. as by the applicant J—T.
103
The service proposed by J—T was specialized in the following particulars. It had designed a trailer exclusively for Boeing's landing-gear bulkheads at a cost of $3,360 within about two weeks. The trailer was underslung with an adjustable floor and roof in order to permit rearend loading, a fully enclosed carrier, and the height clearance required by state law on the roads it traveled. The trailer was spotted at Boeing's Wichita plant, available at all times on short notice to leave for the supplier's plant in Indianapolis to pick up another load of bulkheads.
104
The Traffic Manager for Boeing's Wichita plant testified that the shipper had enjoyed particularly the close coordination with J T made possible through its near-by Wichita terminal. The bulkheads had to be scheduled into the assembly operation at a predetermined time; constant engineering changes necessitated supply of particular bulkheads for particular planes, and a delay in transportation could prove very expensive. The shipper was disinclined to use U.S.A.C. because it had no Wichita terminal, because its tariffs gave it authority to decide on the type of equipment it would use, and because of an experience of carelessness in 1953, although it was uncertain whether this had been the fault of U.S.A.C. or of the shipper.
105
U.S.A.C. offered evidence that it maintained a terminal in Indianapolis and one in Topeka, Kansas, which could cover shipments from Wichita. U.S.A.C. would be willing to modify its canvas-topped trailer to install necessary fixtures and a removable or elevatable roof as needed. The roof would take three days to install, the necessary fixtures ten days to two weeks. Its tariff power to control equipment was used only to prevent overloading.11 It was willing to dedicate the necessary equipment exclusively to the shipper.
106
From this evidence it was certainly open to the Commission to find, as it did, that U.S.A.C. could meet the 'distinct need' of the shipper. The tariff power was no obstacle. An ambiguous and ancient complaint about service need not control. The absence of a Wichita terminal could be offset, if need be, by the presence of an Indianapolis terminal: The traffic had thus far been entirely one way, from Indianapolis to Wichita, and no reason was given why telephonic consultation with Indianapolis, reaching the supplier and the carrier in the same place, might not be as efficient or more so. Moreover, the shipper on three occasions gave evidence that its preference for J—T was in actuality based on a misunderstanding of common-carrier authority that the Commission was under no obligation to credit.12
107
But this does not mean that, as a statutory matter, the Commission was required to find that the protestant could meet the 'distinct need' of the shipper. That phrase was inserted in § 203(a)(15) to restrict the definition of a contract carrier, not to limit the opportunities of a common carrier. It should be noted that a contract carrier may so qualify under that section either by meeting the distinct need of a particular customer or by meeting very ordinary needs through the assignment of vehicles to the shipper's exclusive use. If the latter qualification were controlling in a given case, the consideration of 'distinct need' would be irrelevant.
108
Beyond this parsing of § 203(a)(15), moreover, there is reason in policy for the Commission to deny an application when the protestant is able to furnish 'reasonably adequate' services. The Motor Carrier Act expresses a policy, as we have seen, of preserving existing common carriage against the inroads of contract carriage. One way of putting that policy into effect is to deny a contract-carrier application, as the Commission has always done, unless the applicant can demonstrate that its service will be substantially superior to that afforded by existing carriers. Another way of describing this practice, which the 1957 amendments have in no way affected, is that no permit will issue for traffic that can be handled with reasonable adequacy by a protestant.
109
(3) The District Court was most emphatic in its conclusion that the Commission had erred in its resolution of the third factor in § 209(b)—'the effect which granting the permit would have upon the services of the protesting. carriers'—by the aid of an unwarranted presumption. The relevant language of the final report is as follows:
110
'The question presented * * * is how we are to determine whether a grant of authority will adversely affect the service of a protestant. It might be argued that where, as here, a protestant is not now enjoying the involved traffic, it cannot be adversely affected by a grant of authority. However, we believe that our past holdings that existing carriers are entitled to transport all the traffic which they can economically and efficiently handle before additional authority is granted are equally valid today as they were prior to the 1957 amendments to the act. There is, in effect, a presumption that the services of existing carriers will be adversely affected by a loss of 'potential' traffic, even if they may not have handled it before.' 79 M.C.C., at 705.
111
How the District Court could be confident that the Commission was blindly applying what it itself called only 'in effect' a presumption, in the face of detailed findings that the traffic was one that the protestant 'can economically and efficiently handle,' it did not explain. Doubtless if the Commission had erected a presumption of adverse effect from evidence simply that the protestant possessed authority in its certificate to carry that traffic, its action would have been inconsistent with congressional deletion of the words 'not provided by common carriers' from the amendment to § 203(a) (15). But, as we have seen, that is plainly not what the Commission did.
112
The court went further, however, and determined that evidence of the protestant's willingness and ability was by itself insufficient to support the requisite finding of an adverse effect. 'Where * * * the protesting carrier is not participating in the traffic involved, there can be no diversion of traffic and hence ordinarily there would be no adverse effect on the services of the protesting carrier.' 185 F.Supp. at 848. It is somewhat difficult to know by what expert insight the District Court achieved this conclusion, at variance with the Commission's deliberate and considered contrary resolution of the same issue. Apparently the court thought that the shipper's expressed preference for the applicant had to be taken into consideration in determining whether the protestant would be injured by a grant of the permit. Even if this were a proper reading of the statute, it would not justify the District Court's conclusion. For the record shows that when the shipper was asked whose services it would use if the permit were denied, it replied that it did not know.
113
But it is plainly an improper reading of the statute. The Commission has invariably held that the preference of a shipper for a particular carrier, even though based on sound business reasons, is not enough to warrant issuance of a permit. This practice is unaffected by the 1957 amendments. We have ourselves unanimously held, since those amendments went into effect, that legally cognizable injury might accrue to an existing carrier denied potential traffic.
114
'(S)urely the statement by General Motors (the shipper) that it would not in any event give the business to any appellant cannot deprive appellants of standing. The interests of these independents cannot be placed in the hands of a shipper to do with as it sees fit through predictions as to whom its business will or will not go. * * * We conclude, then, that appellants had standing to maintain their action to set aside the Commission's order under the 'party in interest' criterion of § 205(g) of the Interstate Commerce Act, * * * and under the 'person suffering legal wrong * * * or adversely affected or aggrieved' criterion of § 10(a) of the Administrative Procedure Act * * *.' American Trucking Ass'ns v. United States, 364 U.S. 1, 18, 80 S.Ct. 1570, 1580, 4 L.Ed.2d 1527.
115
If a protestant may be 'adversely affected' despite shipper hostility for purposes of seeking judicial review, it seems consistent to permit the Commission to find it so for purposes of ruling upon an application under § 209(b).
116
There is persuasive legislative history to the same effect. The amendments to S. 1384 proposed in the Senate hearings by the Contract Carrier Conference, which were substantially adopted as the criteria in § 209(b), would have erected a presumption in favor of a contract-carrier applicant when the shipper had previously been using private carriage. Senate Hearings 305. This provision was supported on the ground that no adverse effect would normally be visited on a protestant when the shipper had so demonstrated its antipathy to common carriage. It was deleted by the Subcommittee. Thus, if we are to place emphasis on congressional rejections, we must take this deletion as significant that shippers' desires are not to be controlling.
117
But we need not rely on this episode to prove the point. The whole scheme of statutory regulation points the same way. For we must remember that Congress has chosen in the Motor Carrier Act to regulate motor transportation not by the forces of competition but by impartial administration through an expert body. No doubt contract carriage is frequently preferred by shippers for the advantages, chiefly in flexibility of operations, that it may hold over available common carriage. But the national interest to be safeguarded under the National Transportation Policy is entrusted to the I.C.C. and not to the self-interest of shippers. So long as the Commission does not behave arbitrarily, does not reject the offer of relevant testimony or refuse to 'consider' some factor that Congress has commanded to be taken into account, the weight or value accorded the various factors and the Commission's evaluation of the comparative needs of shipper, applicant, and protestant in a particular situation are conclusive.
118
A careful reading of the report and record demonstrates the unwisdom of overturning the Commission's exercise of its regulatory functions upon merely apparent surface improprieties. For the Commission found as a fact that the protestant needed the proposed traffic; that U.S.A.C.'s.
119
'ability to obtain business depends on its ability to satisfy the needs of the shippers having transportation requirements similar to those of these supporting shippers, and it is dependent upon the very kind of traffic that is here considered for the continuance of its operations.' 79 M.C.C., at 708.
120
This is the content of the 'presumption' that flows from a protestant's showing of its willingness and ability: a decidedly adverse effect from a loss of 'potential' traffic. And the finding rested on a substantial array of record facts. U.S.A.C. had demonstrated its needs by actually soliciting Boeing for the traffic, far in advance of this proceeding. Its record of recent 'deadheads,' or empty trailers, leaving Indianapolis was impressive: in March of 1957, 92 deadheads as against 61 full loads; in April, 85 against 60. A similar empty-equipment problem existed in Wichita. Aircraft-parts transportation in general had recently decreased. The problem was one of aircraft obsolescence, making the business spotty, with recurrent highs and lows. U.S.A.C. had been engaged in the programs for the building of F 184's, B—47's, and B—36's. Each had ended.
121
Surely it would have been permissible for the Commission, charged as it is with preserving transportation for the national defense, to conclude that the national interest lay in seeking to keep U.S.A.C.'s excess capacity profitably employed and available for future defense needs. The fact that the Commission did not advert expressly to defense needs in its report does not affect the illustration this evidence affords of the way in which a presumption of adversity may reasonable be drawn from evidence of a protestant's desire and capacity for traffic.
VII.
122
The appropriate relation between the Commission and the courts was delineated in our treatment of the closely parallel problem in Secretary of Agriculture v. Central Roig Ref. Co., 338 U.S. 604, 70 S.Ct. 403, 94 L.Ed. 381. The Sugar Act of 1948, § 205(a), 7 U.S.C.A. § 1115(a), authorized the Secretary to allocate marketing quotas among particular refineries 'in such amounts as to provide a fair, efficient, and equitable distribution' (compare 'consistent with the public interest and the national transportation policy'), and directed him to do so 'by taking into consideration' three factors—one related to processing of raw sugar from sugar cane, which the Secretary decided was inapplicable, and the other two past marketings and future marketing capacity. The Secretary applied these two by giving them equal weight and referring them to a pre-World War II base period selected as one unaffected by special wartime demands. The resulting allocation order was attacked as exceeding statutory authority and was set aside by the Court of Appeals. This Court reversed, holding that the Secretary had not exceeded the discretion necessarily vested in him by the sugar-quota scheme. We noted that a direction to 'consider' certain factors did not control the Secretary's judgment as to what weight should be assigned to each or whether to give weight to all three in each situation. We concluded that so long as the Secretary was not arbitrary in his choice of means to reach an equitable distribution, his decision should stand.
123
It is a commonplace of administrative law that the evaluation to be given criterial findings, if adequately supported, is left essentially to the administrative agency charged with primary responsibility for interpreting the will of Congress. The extent to which this is so will be misconceived if drawn from abstract conceptions of 'fact,' 'law,' or 'law-application.' For one thing, the permissible scope of administrative discretion may vary from section to section within a single statute. For another, the task of exercising an informed discretion in administrative proceedings extends from testimonial submissions through considerations of regulatory policy to obedience of a statutory command. It is a question of policy, derived from due regard for, and based on understanding of, the regulatory scheme enacted by Congress, at which point a reviewing court should intervene. A conclusion that the agency's determination, resting on findings (where, as is normally true, they are required) appropriately supported by evidence, is within its power to make is a conclusion that the factors calling for intervention are absent. Compare Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 547 548, 32 S.Ct. 108, 110—111, 56 L.Ed. 308.
124
Administrative agencies are not only vested with discretion in sifting evidence and in making findings but may also draw on their specialized competence for ascertaining the reach and meaning of statutory language. Compare Social Security Board v. Nierotko, 327 U.S. 358, 368—371, 66 S.Ct. 637, 642—644, 90 L.Ed. 718, with National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 128—131, 64 S.Ct. 851, 859—860, 88 L.Ed. 1170. The factors to be considered on judicial review of such an administrative determination include the precision of the statutory language, the technical complexity of the relevant issues, the need for certainty as against experimentation, and the likelihood that Congress foresaw the precise question at issue and desired to express a foreclosing judgment on it. In assessing these factors, we are guided primarily by an investigation of the prior law as it sheds light on the 'mischief' Congress sought to alleviate, and of the statute itself to see how closely Congress sought to define the balance of competing considerations it addressed.
125
That investigation here reveals that Congress conferred the power on the Commission to decide as it has done in this case. None of the precedents is to the contrary; each points to this conclusion. See United States v. Pierce Auto Lines, 327 U.S. 515, 535—536, 66 S.Ct. 687, 697—698, 90 L.Ed. 821 (not for courts to gauge public interest; so long as requisite findings are made and supported by evidence, the resolution of relevant factors is for the Commission); Bass v. United States, 163 F.Supp. 1, 4 (W.D.Va.1958), aff'd per curiam, 358 U.S. 333, 79 S.Ct. 351, 3 L.Ed.2d 350 (same); cf. United States v. Detroit & Cleveland Nav. Co., 326 U.S. 236, 240—241, 66 S.Ct. 75, 77 90 L.Ed. 38. In Schaffer Transp. Co. v. United States, 355 U.S. 83, 86 n. 3, 90, 78 S.Ct. 173, 175, 177, 2 L.Ed.2d 117, the Court deliberately refrained from guiding the Commission's discretion in evaluating the relative advantages of competing carriers.13
126
Determinations by the Commission which Congress has committed to its judgment must be judicially respected because such exercises of administrative discretion are beyond the competence or jurisdiction of courts. Their power of review is confined to correction of Commission action that transcends the authority given it by Congress, including of course disregard by the Commission of procedural proprieties resulting in arbitrary use of its powers.
127
In the present case, no claim can be made that the Commission's findings are unsupported by substantial evidence. United States v. Pan American Corp., 304 U.S. 156, 158, 58 S.Ct. 771, 773, 82 L.Ed. 1262; cf. Universal Camera Corp. v. Labor Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; see Administrative Procedure Act, § 10(e), 60 Stat. 237, 243 (1946), 5 U.S.C. § 1009(e), 5 U.S.C.A. § 1009(e). The Commission's detailed report negatives this, as it would a claim that the Commission neglected to make requisite findings.
128
Of course the provisions of the National Transportation Policy must be applied by the Commission to each application, see Schaffer Transp. Co. v. United States, 355 U.S. 83, 88, 78 S.Ct. 173, 176, 2 L.Ed.2d 117, but they 'represent, at best, a compromise between stability and flexibility of industry conditions, each alleged to be in the national interest, and we can only look to see if the Commission has applied its familiarity with transportation problems to these conflicting considerations.' American Trucking Ass'ns v. United States, 344 U.S. 298, 314, 73 S.Ct. 307, 316, 97 L.Ed. 337; see Interstate Commerce Commission v. Parker, 326 U.S. 60, 66, 65 S.Ct. 1490, 1493, 89 L.Ed. 2051. The Commission's action here certainly does not fall short of that standard. See 79 M.C.C., at 705—706.
129
An order of the Commission cannot stand, it is true, if we cannot tell what has been decided or if it leaves unclear the basis for its conclusions. United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 510—511, 55 S.Ct. 462, 467, 79 L.Ed. 1023. Findings are no doubt judicially more persuasive the more felicitously they are formulated and the less they require extraction from a diffuse report. But the Commission is not under statutory duty to set forth its findings in serried array. It is the Court's duty to sustain the Commission's findings if, as here, there is no real difficulty in determining what was decided and on what grounds.
130
It is not the Court's function to impose our standards of lucidity or elegance in exposition upon the Commission. And we should take due warning from the consequences of our decision in City of Yonkers v. United States, 320 U.S. 685, 64 S.Ct. 327, 88 L.Ed. 400, of what may follow from exacting overnice requirements of the I.C.C. There the Commission had made no explicit finding that an electric interurban railway was an integral part of a steam railroad system as it had to be before the Commission could allow it to suspend its operations. The facts were so clearly spread upon the record that the point was not argued until one of the parties raised it on appeal. This Court remanded the case for an express finding. The Commission took some more evidence and in due course it entered the inevitable finding. The order was attacked again in the District Court, affirmed again after another lengthy opinion, and eventually affirmed per curiam, Public Service Comm. v. U.S., 323 U.S. 675, 65 S.Ct. 130, 89 L.Ed. 548. That wasteful charade ought not to be repeated here.
131
I would reverse and allow the Commission's order to stand.
132
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice STEWART join, concurring in part.
133
These are appeals from the judgment of a District Court setting aside an order of the Interstate Commerce Commission denying an application for a contract-carrier permit. The application sought authority to transport canned goods under continuing contracts with three Arkansas canning companies to points in 33 States and to return from those points with canned goods and canning materials such as cans, lids, and corrugated boxes. It was opposed by two groups of railroads, one motor contract carrier and 25 motor common carriers, authorized to undertake transportation in the territory proposed.
134
The trial examiner's recitation of facts, as adopted by the Commission, may be briefly summarized. Each of the supporting shippers does a substantial volume of business with small-lot purchasers. These customers maintain low inventories, necessitating a transportation service capable of effecting multiple pickups and deliveries on short notice. Each shipper has engaged in private carriage for this purpose, sending only single-lot full truckloads by common carrier. The Steele Canning Company's private equipment was furnished in part through a lease of the applicant's trucks. When a strike of its drivers occurred, it sought to contract with the applicant for its independent services. The other shippers, who before the strike sold much of their goods through Steele, now wish to expand their sales to individual customers and desire the same type of service from the applicant.
135
Under its temporary authority, the applicant has been offering several stops in transit at the truckload rate, and assessing no stop-in-transit charge, thus rendering in effect a less-than-truckload service at truckload rates.
136
Existing motor carriers possess the authority and equipment to provide service to a substantial number of the points involved, either directly or by joint-line operations. Although few have previously participated in this particular transportation, each displays a desire to obtain the traffic; so do the protesting railroads, which have recently experienced a sharp decline in canned-goods tonnage. The motor carriers are willing and able to provide multiple pickups and deliveries where authorized.
137
The shippers asserted a preference for the applicant's services on two specific grounds. First, they contended that existing carriers were unable to furnish multiple pickup and delivery service with sufficient expedition. Second, they maintained that the less-than-truckload rates charged by common carriers were prohibitive in light of the small profit from a canned-goods shipment allowed by competitive conditions. Accordingly, they asserted that, if the permit were denied, they would resort to private carriage.
138
On the first point, the Commission concluded that the type of service required by the shippers was not substantially different from that offered by available motor common carriers. Its treatment of the third and fourth criteria in § 209(b) of Part II of the Interstate Commerce Act, added by 71 Stat. 411 (1957), 49 U.S.C. § 309(b), 49 U.S.C.A. § 309(b), a treatment attacked and invalidated in the District Court, was animated by the same policy preference for preserving available common carriage that characterized its disposition of the J—T Transport application, reviewed here today, 368 U.S., p. 81, 82 S.Ct., p. 204, supra. The pertinent portion of its report is as follows:
139
'Aside from evidence pertaining to rates, the record is devoid of any substantial showing of dissatisfaction on the part of the shippers with existing service. Complaints about joint-line service, slow transit time, and inability to arrange multiple pickups and deliveries are of a general nature, and are not substantiated by reference to specific instances. Although protestant motor carriers, especially those operating over regular routes, may be hindered in some instances by their authorities and the nature jof their operations from achieving complete flexibility in effecting multiple pickups and deliveries, the supporting shippers have failed to show that they have been unable to obtain reasonably adequate service upon request. * * * In the absence of a more positive showing that existing service will not meet shipper's reasonable transportation needs, we are not warranted in finding that a new service should be authorized or that the supporting shippers will be adversely affected by a denial of this application.' 81 M.C.C. 35, 41—42 (1959).
140
This conclusion was attacked and set aside in the District Court on much the same grounds as those leading to a similar result in the J—T Transport case, supra. Little need be added here to what I said there. Suffice it to say that the Commission made the findings required of it by § 209(b) and that each was supported by substantial evidence. Although its evaluation of those findings and the conclusion that it drew from them1 may be different from those we might have reached were we on the Commission, it is not for a reviewing court to upset the Commission's informed judgment on the factors it has been asked by Congress to consider. United States v. Pierce Auto Freight Lines, 327 U.S. 515, 535—536, 66 S.Ct. 687, 697—698, 90 L.Ed. 821; Bass v. United States, 168 F.Supp. 1, 4 (W.D.Va.1958), aff'd per curiam, 358 U.S. 333, 79 S.Ct. 351, 3 L.Ed.2d 350; and see Secretary of Agriculture v. Central Roig Ref. Co., 338 U.S. 604, 70 S.Ct. 403, 94 L.Ed. 381.
141
There is, however, an additional issue in this case that differentiates it from J—T Transport, supra. It is whether the Commission is required in an application proceeding to consider evidence that the rates of available common carriers are so high as to make transportation costs prohibitive for a supporting shipper.
142
Before reaching that issue, it is necessary to dispose of a contention that prevailed in the District Court and is pressed here, that the Commission must consider in every application evidence of mere rate advantages resulting from economies inherent in contract-carrier operations. Section 209(b) makes no such requirement.
143
In Schaffer Transp. Co. v. United States, 355 U.S. 83, 91—92, 78 S.Ct. 173, 178, 2 L.Ed.2d 117, we recognized and impliedly approved the longstanding Commission practice of ignoring rate advantages offered by an applicant over available motor carriers. The Commission has consistently ruled that a shipper dissatisfied with existing common-carrier rates cannot on that ground alone successfully support an application for a contract-carrier permit, and that its remedy lies in attacking the rates under § 216 of the Act, 49 U.S.C.A. § 316. See, e.g., Dixon & Koster Contract Carrier Application, 32 M.C.C. 1, 4 (1942); James F. Black Extension of Operations—Prefabricated Houses, 48 M.C.C. 695, 708—709 (1948); Joseph Pomprowitz Extension—Packing House Products, 51 M.C.C. 343, 350 (1950). That is what it ruled in this case, see 81 M.C.C., at 42—43.
144
This consistent Commission practice rests on relevant transportation policy considerations. If rate advantages resulting from inherent economies were made a determining factor, the Commission would have to permit protestants to challenge the cost justification of an applicant's proposed rates. This the Commission has never permitted, see Omaha & C.B.R. & Bridge Co. Common Carrier Application, 52 M.C.C. 207, 234—235 (1950), largely because at the application stage there is as yet no revealing record of profit or loss derived from the proposed transportation service,2 and its refusal has been judicially approved. Railway Express Agency v. United States, 153 F.Supp. 738, 741 (S.D.N.Y.1957), aff'd per curiam, 355 U.S. 270, 78 S.Ct. 330, 2 L.Ed.2d 257; see American Trucking Ass'ns v. United States, 326 U.S. 77, 86—87, 65 S.Ct. 1499, 1503, 89 L.Ed. 2065.
145
More fundamentally, it misconceives the object of congressional motor-carrier regulation to maintain that the Commission must in application proceedings respect inherent cost advantages of contract as against common carriers. They are not different 'modes' of transportation within the meaning of the National Transportation Policy, and Congress has not been concerned with maintaining competition between them as it has been, for example, between railroad and motor carriers. Compare Schaffer Transp. Co. v. United States, 355 U.S. 83, 78 S.Ct. 173, 2 L.Ed.2d 117. The Commission is specifically admonished, in § 218(b) of the Act, not to prescribe minimum rates that give contract carriers an undue competitive advantage over common carriers.
146
In rate proceedings, however, the Commission has construed this section as not authorizing it to invalidate cost-justified rates of existing, previously authorized contract carriers even though they may draw away a large volume of traffic from common carriers. New England Motor Rate Bureau v. Lewers, 30 M.C.C. 651 (1941). Once granted a permit, therefore, a contract carrier may exploit its inherent cost advantages to the great detriment of existing common carriers. In determining to ignore those cost advantages in an application proceeding, the Commission acts well within its authority to effectuate the congressional policy of limiting entrance to contract carriage as a means of preserving the capacity of available common carriers to meet the Nation's transportation needs.
147
That policy is unaffected by the 1957 amendments to §§ 203(a)(15) and 209(b). There is not one reference to rates in the legislative history of those amendments. If anything, the action of the 1957 Congress looks the other way; § 218(a) was amended, by 71 Stat. 343, 49 U.S.C. § 318(a), 49 U.S.C.A. § 318(a), to require the filing of actual rather than minimum contract-carrier rates, so as to eliminate a competitive disadvantage of common carriers.
148
The right of the Commission to disregard rate advantages as such in application proceedings does not, however, dispose of this case. For the testimony and arguments presented to the Commission fairly raised the claim that the available common carrier rates, whether or not just and reasonable in relation to transportation costs, were prohibitive for the shippers. If this claim were sustained by the Commission, it is difficult to see how it could avoid the conclusion that a denial of the permit would hobble the shipper without benefiting protestants by potentially augmenting their traffic.
149
The Commission has in fact recognized what it styles an 'embargo' exception to its usual practice of disregarding the level of rates charged by existing carriers. See H.L. & F. McBride Extension—Ohio, 62 M.C.C. 779, 790 (1954). In Herman R. Ewell Extension—Philadelphia, 72 M.C.C. 645, 648 (1957), the Commission treated a shipper's claim similar to the present one in a manner relevant to our problem.
150
'(T)he present record does not show any effort by the carriers to handle with the shipper its claim that their rates are prohibitive. Sugar is a relatively inexpensive commodity which sells at prices which, compared to prewar prices, do not appear to have increased percentage wise to the same extent as most other commodities. It appears not improbable that the margin of profit thereon is so narrow that the traffic will not move except at rates lower than other commodities customarily moved in tank-truck equipment. It may be that protestant's rates, though not intrinsically unreasonable from a standpoint of cost or compared to other bulk liquid rates, are still too high to move this particular traffic. And it may be that protestants are within their rights in the exercise of their managerial discretion in refusing any reduction even at the cost of losing the traffic but, if so, they should at least have negotiated with the shippers to the point of making their positions clear. Their failure to do so indicates either decision to forego the traffic except at their present rates or a lack of interest in it at rates at which it can move.
151
'Without departing from the general proposition that the reasonableness of rates is not an issue in public convenience and necessity proceedings, and that if rates are too high an adequate remedy is available under section 216 of the Interstate Commerce Act, we conclude that authority should be granted here. * * * (Protestants') rates have not and will not move the traffic; and to this extent the available motor service is inadequate to meet the shipper's requirements. Protestants, never having handled the traffic, will not be adversely affected by this action.'
152
In the Ewell proceeding, there was evidence that the existing rates were two to three times as high as those proposed by the applicant, that the shipper would have to 'absorb' about $200 on each 30,000-pound shipment, and that it had asked existing carriers to adjust their rates without result. Similar evidence was presented in the present proceeding. The representative of the Steele Canning Company testified that, in numerous discussions with protestant carriers, it had learned that their less-than-truckload rates were two and three times as high as the truckload rates proposed by the applicant, and that these rates would drive its canned goods out of the competitive market. Whether this testimony was specific and persuasive enough to establish that the traffic would not move at existing rates we do not know, for the Commission made no finding on this issue. Compare Schirmer Transp. Co., Inc., Extension—Molasses, 77 M.C.C. 240, 242 (1958). Until it does, we are unable to exercise our reviewing function of ensuring that the Commission stays within its statutory authority and does not act arbitrarily. Cf. State of Florida v. United States, 282 U.S. 194, 214—215, 51 S.Ct. 119, 124 125, 75 L.Ed. 291.
153
I would vacate the judgment of the District Court and remand the case to the Commission for a considered determination whether the rates of protestant motor carriers are prohibitive. The scope of inquiry should be strictly limited. The Commission need not engage in a full-dress rate proceeding to determine whether present motor-carrier rates are unjust or unreasonable. It need only find, from the evidence of record or additional evidence that it deems necessary, whether those rates impose an embargo on the shippers' goods.
1
Hearings, S. 1384, Subcommittee of Committee on Interstate and Foreign Commerce, 85th Cong., 1st Sess., p. 6.
2
The proposed amendments were objected to by the Department of Justice as being 'unduly restrictive' (S.Hearings, Subcommittee of Committee on Interstate and Foreign Commerce, 85th Cong., 1st Sess., p. 11) and in part by the Department of Commerce. Id., 200 203. They were also opposed by the Contract Carrier Conference that stated, inter alia, 'Since the state of mind of the common carriers concerning their willingness is a matter peculiarly within their own knowledge, it would be absolutely impossible for a contract carrier to ever prove to the contrary. Furthermore, it would be very difficult for a contract carrier or its supporting shipper, having no intimate knowledge of the business of opposing common carriers, to prove that such carriers were unable to perform a given service.' Id., p. 303.
3
The change in the Commission's attitude is summarized as follows in S. Rep. No. 703, 85th Cong., 1st Sess., p. 4, 2 U.S. Code Cong. & Adm.News. 1957, p. 1601: '* * * the Commission, upon reflection on the objections of contract and private carriers to the bill, concluded that in some respects S. 1384 would provide too rigid a pattern. It decided that the proposed requirement in section 209(b) that additional permits could be issued only upon a showing that existing common carriers are unwilling or unable to render the required types of service should be withdrawn.'
4
That this change was made is clear. See S. Rep. No. 703, 85th Cong., 1st Sess., pp. 2—3, 6, 7; H.Rep. No. 970, 85th Cong., 1st Sess., p. 3.
5
Sec. 203(a)(15), 49 U.S.C.A. § 303(a)(15) as amended reads as follows:
'The term 'contract carrier by motor vehicle' means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to in paragraph (14) and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.'
6
Congress in 1940 described the National Transportation Policy:
'It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions;—all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.' 54 Stat. 899.
1
The Commission has classified motor carriage by 17 types of commodities, and each one admits of common or contract carriage. 49 CFR § 165.2 (1961).
2
54 Stat. 898, 920 (1940).
3
The National Transportation Policy, added by 54 Stat. 898, 899 (1940), 49 U.S.C. preceding § 301, 49 U.S.C.A. preceding § 301, provides in relevant part: 'It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges * * * without * * * unfair or destructive competitive practices * * *—all to the end of developing * * * a national transportation system * * * adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.'
4
Senator Truman, a Senate conferee, said in presenting the bill:
'Section 203, paragraphs (14) and (15), have been rewritten for the sole purpose of eliminating carriers performing pick-up, delivery, and transfer service. This change was suggested by the Chairman of the Interstate Commerce Commission.
'The conferees wish to make it plain that it is not their intention, by changing the language of paragraphs (14) and (15) of section 203 to change the legislative intent of the Congress one iota with respect to definition of common and contract carriers other than those performing pickup, delivery, and transfer service. It is intended that all over-the-road truckers shall whenever possible fall within the description of common carriers.
'It is intended by the definition of contract carriers to limit that group * * *.' 86 Cong.Rec. 11546 (1940).
5
Bracketed numbers added for convenient reference. Only the third factor and so much of the fourth as is italicized are in issue here. The Commission considered the others, and no challenge is made to its disposition of them.
6
Section 209(b) then excluded from the limitations the Commission could impose, 'the right of the carrier to substitute or add contracts within the scope of the permit.' As amended after Contract Steel, 71 Stat. 411, 412 (1957), the section empowers the Commission to attach 'terms, conditions and limitations respecting the person or persons and the number or class thereof for which the contract carrier may perform transportation service, as may be necessary to assure that the business is that of a contract carrier and within the scope of the permit * * *.'
7
Surface Transportation—Scope of Authority of I.C.C. Hearings before the Subcommittee on Surface Transportation of the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 1st Sess. 23 (1957) (hereinafter cited as Senate Hearings).
8
S. 1384 is printed at Senate Hearings 6.
9
The only other light shed on the significance of the deletions is furnished in a colloquy in the course of the hearings:
'Senator SCHOEPPEL. I would like to ask a question right there: Supposing you had a common carrier serving certain territory but wasn't furnishing adequate service. There was common carrier service there, but of a very limited nature, and with the mode and extent of doing business nowadays would you draw the line there that the common carrier had to furnish reasonably adequate and prompt service?'
'Mr. ROTHSCHILD (from the Department of Commerce, deferred specific answer and then replied). They should not be able to deny the application of a common (sic) carrier simply because someone claims that there is common carrier service there.' Senate Hearings 200—201, 203.
What weight, if any, should be accorded this exploratory speculation between a single subcommittee member and a representative of a government department having no intimate familiarity with prior administrative practice, is problematical. Even giving it the fullest significance it can bear, however, the most that emerges is this: When a contract carrier applies for a permit, it is not enough for a protestant to show that it has authority to transport the proposed traffic. It must show also that it has the capacity and willingness to do so, and the Commission must be satisfied from all the evidence that, in Senator Schoeppel's words, the service it can perform is 'reasonably adequate' to meet the shipper's needs. But this, it will be seen, is precisely the procedure that the Commission had invariably followed from 1935 to 1957.
10
The statement may be deemed lacking in detail in not explicitly considering the five criteria in § 209(b), which became effective in its amended form on August 22, 1957, after the application had been heard but before Division 1's order was issued. See Ziffrin, Inc. v. United States, 318 U.S. 73, 78, 63 S.Ct. 465, 468, 87 L.Ed. 621. The final order of the full Commission made the detailed findings, however, so that the question need not detain us.
11
The evidence showed that the total weight of the haul was about 5,500 pounds (R. 92), and the trailer proposed by U.S.A.C. had a capacity of 24,000 pounds. (Protestant's exhibit No. 15, R. 147; R. 112.)
12
J—T's application was supported because '* * * we recognized that the contract carrier can dedicate equipment to our service, the type of equipment that we want, and we feel that on this type of a transportation it is the best thing to have the equipment solely dedicated to our use.' (R. 89.)
It did not choose a common carrier 'because the common carrier cannot dedicate his equipment exclusively to our service as a contract carrier can.' (R. 97.)
Again: 'It is my understanding that a common carrier cannot dedicate equipment to a particular shipper, that he holds himself out to furnish that equipment to any shipper that wants it.' (R. 103.)
This was of course an erroneous understanding, as Commission precedents demonstrate. A common carrier must hold itself out through its tariffs to serve any shipper who desires the same class of traffic, but it may specialize as much as a contract carrier does and may dedicate equipment to the use of any one such shipper. When U.S.A.C. offered to do so, it was a reasonable conclusion that the shipper's particular needs had been met.
13
Nor is the holding in the Schaffer case of any aid to the appellees. The Court held that a common-carrier applicant could not be denied a certificate on the grounds of existing rail service, without a finding whether the 'inherent advantages' of motor transport should warrant the grant. Such a finding was thought necessary to conform to the dictates of the National Transportation Policy, the Court declaring that:
'To reject a motor carrier's application on the bare conclusion that existing rail service can move the available traffic, without regard to the inherent advantages of the proposed service, would give one mode of transportation unwarranted protection from competition from others.' 355 U.S., at 90—91, 78 S.Ct. at 178.
On 91—92, the Court recognized that these considerations did not necessarily pertain to applications opposed by other motor carriers. The Commission has held in these proceedings that motor common and contract carriers are not different 'modes' of transportation, 79 M.C.C., at 710, and its expert conclusion is entitled to great weight. Indeed, the whole history of motor carrier regulation negates any suggestion that Congress has been interested in preserving competition between the different classes of motor carriers.
1
The Commission has consistently ruled that a joint-line transportation service is not inadequate to meet a shipper's needs. See cases collected in Hale & Hale, Competition or Control III: Motor Carriers, 108 U.Pa.L.Rev. 775, 783 n. 24 (1960).
2
Thus in the present case the applicant submitted a balance sheet but no income statement (R. 31).
| 78
|
368 U.S. 146
82 S.Ct. 282
7 L.Ed.2d 199
FEDERAL LAND BANK OF WICHITA, Petitioner,v.BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF KIOWA, STATE OF KANSAS, et al.
No. 25.
Argued Oct. 16, 1961.
Decided Dec. 11, 1961.
J. William Doolittle, for the petitioner.
Robert C. Londerholm, Kansas City, Mo., for the respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
A political subdivision of a State has levied a personal property tax on a federal instrumentality despite a claim of immunity by virtue of a federal statute.
2
Petitioner, the Federal Land Bank of Wichita, acquired a mortgage on realty in Kiowa County, Kansas, in the course of its business as a federal instrumentality duly organized under the Federal Farm Loan Act.1 Upon default, foreclosure, purchase at a sheriff's sale, and confirmation, petitioner became the owner of the land. Subsequently the land was conveyed to a third party, the deed reserving an undivided one-half interest in the mineral estate. By the time of this conveyance petitioner had recovered the entire loss occasioned by the default on the mortgage. Petitioner executed an oil and gas lease on the reserved mineral estate, and the discovery of a gas pool in the area ultimately led to the payment of royalties.
3
A Kansas statute declared that oil and gas leases and the royalties derived therefrom were personal property and were subject to taxation by the counties.2 Pursuant to this statute, Kiowa County levied a personal property tax on petitioner's interest in the oil and gas lease and on the royalties for the year 1957.
4
By the time the tax was levied, petitioner has owned the mineral estate some 14 years. The statute which authorized federal land banks to acquire mortgaged lands limited the period of ownership to five years unless special permission could be obtained from the Farm Credit Administration.3 That agency had promulgated a regulation granting blanket permission to all land banks to hold mineral rights longer than five years.4
5
Petitioner sought an injunction against collection of the personal property tax in the state court, claiming an exemption under 12 U.S.C. § 931, 12 U.S.C.A. § 931,5 which provides, in part, that federal land banks 'shall be exempt from * * * State, municipal, and local taxation, except taxes upon real estate held * * * under the provisions of (section) * * * 781.'6 The injunction was denied. On appeal, the Supreme Court of Kansas affirmed,7 holding that Congress did not intend § 931 to exempt this personal property from taxation because the mineral estate was being held longer than the express time limit established by Congress and because the holding of the mineral estate after the loss had been recouped did not serve the governmental function assigned to the Federal Land Bank. The Court also held that no immunity could be implied. Certiorari was granted in order to determine whether the State had exacted a tax forbidden by the Supremacy Clause of the Constitution.8 365 U.S. 841, 81 S.Ct. 800, 5 L.Ed.2d 807.
6
The Supreme Court of Kansas correctly concedes that a federal instrumentality is not subject to the plenary power of the States to tax,9 that the Congress has the power to determine, within the limits of the Constitution, the extent that its instrumentalities shall enjoy immunity from state taxation,10 that the federal land bank is a constitutionally created federal instrumentality,11 and that Congress has immunized it from personal property taxes on activities in furtherance of its lending functions.12
7
The controversy arises over the holding by the Supreme Court of Kansas on alternative grounds that Congress did not intend § 931 to apply to oil and gas leases in the circumstances of this case.13
I.
8
The Court found that the retention of the mineral estate by the petitioner after the loss incurred upon the default on the mortgage had been recovered did not serve the governmental function assigned to the land bank and, as Congress intended immunity to apply only to protect this function, § 931 did not apply here. The Court did not define the type of function that petitioner did perform. Legitimate activities of governments are sometimes classified as 'governmental' or 'proprietary';14 however, our decisions have made it clear that the Federal Government performs no 'proprietary' functions.15 If the enabling Act is constitutional and if the instrumentality's activity is within the authority granted by the Act, a governmental function is being performed. Since the Act establishing the federal land banks has been held to be constitutional, Smith v. Kansas City Title Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577, we need only to determine whether the challenged ownership comes within the purview of the statute.
9
The purpose of the Federal Farm Loan Act and its subsequent amendments was to provide loans for agricultural purposes at the lowest possible interest rates.16 One method of keeping the interest rate low was to authorize the federal land bank to make a profit to be distributed to the shareholders in the form of dividends.17 Because the associations of farmer-borrowers were required by law to be shareholders,18 the distribution of dividends effectively reduced the interest rates. This profit could be earned in two ways: interest from the loans on mortgaged lands and gains on the sale of lands acquired under the provisions of § 781 Fourth.19 The Kansas Court construes § 781 Fourth (b) to grant the limited power to sell land acquired in satisfaction of a debt only to recoup the loss incurred upon the default. We find no such limitation expressed or implied. The loans on the mortgages are limited to a percentage of the current value of the lands that is considerably less than full value, but there is no limit on the amount of the sale price. The banks are therefore authorized to sell lands acquired after default at the best possible price, absorbing the losses in the reserve accounts20 and distributing the profits in dividends. It follows that the land banks are not restricted to a sale price merely sufficient to recoup any losses. The retention of a mineral interest might well be a method of increasing the recovery from lands acquired through mortgage defaults. Consequently, we find that the holding of the mineral estate involved here is in furtherance of the bank's governmental function.
II.
10
The alternative ground relied upon by the Supreme Court of Kansas for concluding that Congress did not intend to confer immunity here relates to the asserted illegality of petitioner's ownership of the mineral estate. Section 781 Fourth (b) limits the time that a federal land bank may own realty acquired after default on the mortgage to five years unless special permission can be obtained from the Farm Credit Administration. Mineral estates are realty under the state law,21 and at the time of the tax levy petitioner had owned the mineral estate longer than five years, relying upon the following regulation promulgated by the Farm Credit Administration to supply the requisite special permission:
11
'Holding mineral rights for more than 5 years. In cases where, in connection with a sale of bank-owned real estate, the bank has retained royalty or other rights in or to minerals, and desires to hold such rights for a period in excess of 5 years, it is not considered that the bank has both 'title and possession' of real estate within the meaning of section 13 Fourth (b) of the Federal Farm Loan Act (12 U.S.C. 781 Fourth (b) (12 U.S.C.A. § 781 Fourth (b))). However, retention of such minerals and mineral rights for periods in excess of 5 years, when in the bank's opinion it is in the bank's interest to do so, has the approval of the Administration.'22
12
Although the reasons are not altogether clear, the Court found this special permission invalid, concluding that petitioner is, therefore, owning the land without authority.
13
First, the Court found 'much to be said' for the trial court's holding that the regulation was not effective because the Farm Credit Administration could not delegate the power to determine when mineral interests might be retained longer than five years to the federal land banks, so that no 'special permission' had been given. Assuming that this is a holding by the highest state court, we are of the opinion that no delegation problem has been presented. Analytically, the power given to the Farm Credit Administration by § 781 Fourth (b) is a licensing power,23 not a rulemaking, an adjudicating, or an investigating power. The regulation states that federal land banks have permission to retain mineral interests longer than five years. This is an exercise of the power to license, not a delegation of it.
14
The second ground for invalidating the permission given by the Farm Credit Administration was that permission could not be given unless the holding of the land was necessary to recoup the loss on the defaulted mortgage. As we have indicated, the holding of a mineral estate after the bank has recouped its loss is within the authority granted by Congress, and thus the Administration had the power to grant this permission.
15
While the court below did challenge the power of the Farm Credit Administration to give the permission required by § 781 Fourth (b), it did not challenge the interpretation placed on that statute when blanket permission was given. The Administration interpreted § 781 Fourth (b) to exclude mineral estates.24 We, therefore, are not required to review that interpretation25 or to examine the jurisdiction, if any, of a state court to review the statutory construction made by a federal administrative agency in a collateral attack on the issuance of a license.
16
While it is not necessary to this decision, it is at least of interest that there have been efforts in successive sessions of Congress to amend the Act to accomplish the result achieved by the Supreme Court of Kansas and that these efforts have failed.26 The extent of the mineral estates owned by federal land banks is considerable: petitioner owns an interest in approximately 283,000 acres; all land banks own an interest in 9,900,000 acres.27
III.
17
Since there are no infirmities in the holding of the mineral estate by the petitioner, there is no basis for implying that Congress did not intend § 931 to provide immunity in this case. As an express immunity has been conferred, there is no need to consider whether the doctrine of implied immunity applies. We conclude that the state personal property tax imposed on petitioner's oil and gas lease and upon the royalties derived therefrom must fall as being unconstitutional by virtue of the Supremacy Clause of the Constitution.
18
Reversed.
19
Mr. Justice BLACK concurs in the result.
1
The Act of July 17, 1916, 39 Stat. 360, as amended, currently codified at 12 U.S.C. § 641 et seq., 12 U.S.C.A. § 641 et seq.
2
General Statutes of Kansas, 1949, §§ 79—329 to 79—334. Section 79—329 reads as follows:
'Oil and gas property as personalty. That for the purpose of valuation and taxation, all oil and gas leases and all oil and gas wells, producing or capable of producing oil or gas in paying quantities, together with all casing, tubing or other material therein, and all other equipment and material used in operating the oil or gas wells are hereby declared to be personal property and shall be assessed and taxed as such.'
3
'Fourth. Acquiring and disposing of property.—To acquire and dispose of—
'(a) Such property, real or personal, as may be necessary or convenient for the transaction of its business, which, however, may be in part leased to others for revenue purposes.
'(b) Parcels of land acquired in satisfaction of debts or purchased at sales under judgments, decrees, or mortgages held by it. But no such bank shall hold title and possession of any real estate purchased or acquired to secure any debt due to it, for a longer period than five years, except with the special approval of the Farm Credit Administration in writing.' 12 U.S.C. § 781 Fourth, 39 Stat. 372, § 13, 12 U.S.C.A. § 781 Fourth.
4
6 CFR § 10.64. See text 368 U.S., p. 153, 82 S.Ct., p. 287.
5
'Every Federal land bank * * * including the capital and reserve or surplus therein and the income derived therefrom, shall be exempt from Federal, State, municipal, and local taxation, except taxes upon real estate held, purchased, or taken by said bank * * * under the provisions of (section) * * * 781 of this title. * * *'
6
See note 3, supra.
7
187 Kan. 148, 354 P.2d 679.
8
Article VI, cl. 2.
9
McCulloch v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579; Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204.
10
Carson v. Roane-Anderson Co., 342 U.S. 232, 72 S.Ct. 257, 96 L.Ed. 257; City of Cleveland v. United States, 323 U.S. 329, 65 S.Ct. 280, 89 L.Ed. 274; Maricopa County v. Valley National Bank, 318 U.S. 357, 67 S.Ct. 587, 87 L.Ed. 834; Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 62 S.Ct. 1, 86 L.Ed. 65; Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 60 S.Ct. 15, 84 L.Ed. 11; Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927; Des Moines National Bank v. Fairweather, 263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191; First National Bank of Gulfport, Miss. v. Adams, 258 U.S. 362, 42 S.Ct. 323, 66 L.Ed. 661; Owensboro National Bank v. City of Owensboro, 173 U.S. 664, 19 S.Ct. 537, 43 L.Ed. 850.
11
Smith v. Kansas City Title Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577.
12
Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 62 S.Ct. 1, 86 L.Ed. 65. See also Federal Land Bank v. Crosland, 261 U.S. 374, 43 S.Ct. 385, 67 L.Ed. 703. Cf. Federal Land Bank v. Priddy, 295 U.S. 229, 55 S.Ct. 705, 79 L.Ed. 1408.
13
Oil and gas leases are personal property under the law of Kansas, a characterization accepted by the Court and all parties below. We do not need to consider the situation when oil and gas leases are characterized as real property under state law. See, e.g., Stokely v. State, 149 Miss. 435, 115 So. 563; Terry v. Humphreys, 27 N.M. 564, 203 P. 539; Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566. Other jurisdictions classify oil and gas leases as profits a prendre or incorporeal interests. See generally 1A Summers, Oil & Gas, §§ 151 170. Cf. Concepts of the nature of mineral interests discussed in footnote 21, infra.
14
These general terms serve as a basis for determining, inter alia, whether the doctrine of sovereign immunity protects a municipality from liability for a tort committed by one of its servants, see, e.g., Dallas v. City of St. Louis, 338 S.W.2d 39 (Mo.); Clark v. Scheld, 253 N.C. 732, 117 S.E.2d 838; Osborn v. City of Akron, 171 Ohio St. 361, 171 N.E.2d 492; Wade v. Salt Lake City, 10 Utah 2d 374, 353 P.2d 914; Francke v. City of West Bend, 12 Wis.2d 574, 107 N.W.2d 500; 18 McQuillin, Municipal Corporations, §§ 53.01, 53.23, 53.24 (3d ed. 1950). But cf. State of New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326.
15
'The argument that the lending functions of the federal land banks are proprietary rather than governmental misconceives the nature of the federal government with respect to every function which it performs. The federal government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental. * * * It also follows that, when Congress constitutionally creates a corporation through which the federal government lawfully acts, the activities of such corporation are governmental (citing cases).' Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 102, 62 S.Ct. 1, 5, 86 L.Ed. 65. See Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 32, 60 S.Ct. 15, 17, 84 L.Ed. 11; Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 477, 59 S.Ct. 595, 596, 83 L.Ed. 927.
16
S.Rep. No. 144, 64th Cong., 1st Sess. 1, 2, 4, 7—9; H.R.Rep. No. 630, 64th Cong., 1st Sess. 4, 5; H.Doc. No. 494, 64th Cong., 1st Sess., 8; 53 Cong.Rec. 6696, 7021, 7023, 7024. Nothing in the subsequent amendments has been called to our attention which modifies this purpose. See Faulkner, American Economic History, 388—390 (6th ed. 1949); Bogart and Kemmerer, Economic History of the American People, 698 (1944).
17
Federal Land Bank v. Priddy, 295 U.S. 229, 233, 55 S.Ct. 705, 707, 79 L.Ed. 1408. The Act of July 17, 1916, 39 Stat. 360, § 23, now 12 U.S.C. § 901 et seq., 12 U.S.C.A. § 901 et seq.; S.Rep. No. 144, 64th Cong., 1st Sess. 5. H.R.Rep. No. 630, 64th Cong., 1st Sess. 10.
18
Persons engaged in agriculture are the only class authorized to borrow from the federal land banks. To obtain a loan, application is made for membership in an association comprised solely of other borrowers. The prospective borrower is required to subscribe to stock in the association in proportion to the loan he desires to obtain. The association approaches the federal land bank, obtains the loan, and subscribes to stock in the federal land bank in proportion to the loan. See 12 U.S.C. §§ 721, 733, 12 U.S.C.A. §§ 721, 733. Cf. 12 U.S.C. § 723, 12 U.S.C.A. § 723.
19
See note 3, supra.
20
12 U.S.C. § 901, 12 U.S.C.A. § 901.
21
We take this statement from the opinion below. We note that petitioner has paid real estate taxes on the mineral estate. Mineral interests receive varying characterizations among the States. Some jurisdictions recognize a horizontal severance of the freehold into surface and mineral estates; others treat the mineral interests as incorporeal hereditaments. Compare Ohio Oil Co. v. Indiana, 177 U.S. 190, 20 S.Ct. 576, 44 L.Ed. 729, with Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 166, 254 S.W. 290, 291, 29 A.L.R. 566. Cf. Wilson v. Holm, 164 Kan. 229, 188 P.2d 899. See Masterson, A 1952 Survey of Basic Oil and Gas Law, 6 Sw.L.J. 1; Walker, Fee Simple Ownership of Oil and Gas in Texas, 6 Tex.L.Rev. 125.
22
6 CFR § 10.64.
23
'The word 'license,' means permission, or authority; and a license to do any particular thing, is a permission or authority to do that thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right which the grantor can transfer, to do what is within the terms of the license.' Gibbons v. Ogden, 9 Wheat. 1, 213—214; 6 L.Ed. 23; see, e.g., Sinnot v. Davenport, 22 How. 227, 240, 16 L.Ed. 243; Southern Pac. Co. v. Olympian Dredging Co., 260 U.S. 205, 43 S.Ct. 26, 67 L.Ed. 213; Pan-Atlantic S.S. Corp. v. Atlantic C.L.R. Co., 353 U.S. 436, 77 S.Ct. 999, 1 L.Ed.2d 963; Administrative Procedure Act, § 2(e), 5 U.S.C. § 1001(e), 5 U.S.C.A. § 1001(e).
24
6 CFR § 10.64 quoted in text at p. 153 of 368 U.S., at p. 287 of 82 S.Ct.
25
See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 139 140, 65 S.Ct. 161, 164, 89 L.Ed. 124; Unemployment Comp. Comm. v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136; Administrative Procedure Act, § 10(e), 5 U.S.C. § 1009(e), 5 U.S.C.A. § 1009(e); see also, e.g., Witherspoon, Administrative Discretion to Determine Statutory Meaning: 'The High Road.' 35 Tex.L.Rev. 63; ibid., 'The Low Road,' 38 Tex.L.Rev. 392, 572; Nathanson, Administrative Discretion in the Interpretation of Statutes, 3 Vand.L.Rev. 470.
26
See H.R. 9290, 76th Cong., 3d Sess.; H.R. 667, 79th Cong., 1st Sess.; H.R. 583, 80th Cong., 1st Sess. See also H.R. 1721 and H.R. 2358, 82th Cong., 1st Sess.; H.R. 1264, 81st Cong., 1st Sess.; S. 2904, 82d Cong., 2d Sess., and H.R. 428, 82d Cong., 1st Sess.; S. 75, H.R. 102 and H.R. 1313, 83d Cong., 1st Sess.; S. 538, 84th Cong., 1st Sess.
27
Petition for writ of certiorari, pp. 8, 9.
| 910
|
368 U.S. 231
82 S.Ct. 302
7 L.Ed.2d 256
John Joseph KILLIAN, Petitioner,v.UNITED STATES.
No. 7.
Argued Oct. 10, 1961.
Decided Dec. 11, 1961.
Rehearing Denied Jan. 22, 1962.
See 368 U.S. 979, 82 S.Ct. 476.
[Syllabus from pages 231-233 intentionally omitted]
David B. Rothstein, Chicago, Ill., and Basil R. Pollitt, Brooklyn, N.Y., for petitioner.
Kevin T. Maroney, Washington, D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
For the purpose of enabling a labor union of which he was then an officer to comply with § 9(h) of the National Labor Relations Act, as amended 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h), and hence to use the processes of the National Labor Relations Board,1 petitioner made on December 9, and caused to be filed with the Board on December 11, 1952, an affidavit reciting, inter alia, 'I am not a member of the Communist Party or affiliated with such Party.' Upon receipt of that affidavit and like ones of all other officers of the union, the Board advised the union that it had complied with § 9(h) and could make use of the Board's processes.
2
In November 1955, an indictment in two counts was returned against petitioner in the United States District Court for the Northern District of Illinois. The first count charged that, in violation of 18 U.S.C. § 1001, 18 U.S.C.A. § 1001,2 petitioner had falsely sworn, in the affidavit, that he was not a member of the Communist Party, and the second charged that, in violation of the same statute, he had also falsely sworn in that affidavit that he was not affiliated with the Communist Party. A jury trial was had which resulted in a verdict of guilty on both counts, and the court sentenced petitioner to imprisonment. On appeal, the United States Court of Appeals for the Seventh Circuit originally affirmed, but, before the motion for rehearing was ruled, this Court's decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, came down, and, on the authority of that case, the court granted the motion for rehearing, reversed the judgment and remanded the case for a new trial. United States v. Killian, 7 Cir., 246 F.2d 77, 82. A new trial was had. It also resulted in a verdict of guilty on both counts, and petitioner was sentenced to imprisonment for five years on Count I, and for three years on Count II, the sentences to run concurrently. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, United States v. Killian, 275 F.2d 561, and we granted certiorari limited to two questions, namely, (1) whether production of statements submitted by Government informer witnesses for their expenses, and the receipts executed by them for the payments, is required by 18 U.S.C. § 3500, 18 U.S.C.A. § 3500 when the Government offers at the trial to produce a list of the dates and amounts of the payments, and (2) whether the instructions to the jury properly defined membership in and affiliation with the Communist Party. 365 U.S. 810, 81 S.Ct. 688, 5 L.Ed.2d 690.
3
The Government introduced evidence tending to show that petitioner was a member and active in the affairs of the Communist Party from 1949 through August 1953, but, inasmuch as there is not before us any question concerning the sufficiency of the evidence to make a submissible case for the jury, it is not necessary to review the evidence in detail.
I. The Document Production Questions.
4
Intelligent understanding of the document production questions presented requires a brief statement of their basis. They arose in connection with the testimony of Government witnesses Sullivan and Ondrejka.
5
On direct examination, Sullivan testified that he joined the Communist Party in 1948 at the request of the Federal Bureau of Investigation, and in October 1949 transferred his membership from Cincinnati, Ohio, to Madison, Wisconsin, where, by secret means, he made contact with local leaders of the Communist Party and became active in its affairs. In those activities, he met petitioner in December 1949. Petitioner was then the section organizer for the Party in Madison. Thereafter, Sullivan attended a number of secret Communist Party group meetings in Madison in 1949 and 1950 at which petitioner was present and acted as the spokesman and leader. Sullivan testified that he gave written reports to the F.B.I. respecting Party meetings and activities soon after they occurred.
6
At the close of Sullivan's direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the F.B.I. relating to his direct testimony. The narrative statements were produced to the judge, in camera, who, after excising the parts that did not relate to the witness' direct testimony, handed them to petitioner's counsel. On cross-examination, Sullivan testified that he was paid stipulated monthly amounts for his services, and was reimbursed for his expenses incurred in Communist Party activities, by the F.B.I., and that when he received the money he signed a receipt for it. His connection with the F.B.I. terminated in 1952.
7
After completing the cross-examination of the witness, petitioner again moved for production of all statements made by the witness to the F.B.I., without excision. The Government objected to the motion on the grounds that it had produced all of the witness' statements that related to his direct testimony, and that there was no showing that the witness had given any other statements to the Government that related to his direct testimony. Thereupon, the court denied petitioner's motion. Petitioner then moved to strike the testimony of the witness, and that motion, too, was denied.
8
On direct examination, Ondrejka testified that he joined the Communist Party at the request of the F.B.I. in October 1949 and remained a member of the Party until November 1953. He met petitioner at a Communist Party meeting in Milwaukee, Wisconsin, in January 1951, and thereafter attended many secret Communist Party meetings in Milwaukee where petitioner was present and active, and also participated with petitioner in numerous Party activities, until August 1953, and knew petitioner to be a member of the Communist Party throughout that period. Ondrejka testified that he gave written reports to the F.B.I. respecting Party meetings and activities soon after they occurred.
9
At the conclusion of Ondrejka's direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the F.B.I. The court ordered to Government to produce to the judge, in camera, 'all statements that in any way affect the direct examination of the witness.' Accordingly, all of the narrative statements given by the witness to the Government relating to his direct testimony were produced to the judge, who, after excising such parts as did not relate to the witness' direct testimony, delivered them to petitioner's counsel. Petitioner then moved for production of all statements relating to the testimony of the witness, without excision. That motion was denied.
10
On cross-examination, Ondrejka testified that he was paid stipulated monthly amounts in cash for his services by the F.B.I., and, in addition, was reimbursed by the F.B.I. for his expenses, such as Communist Party dues, literature, contributions and travel, which he orally reported to an F.B.I. agent, who made notes thereof and later reimbursed him in cash. The court sustained the Government's objection to a question asking whether Ondrejka signed receipts for the moneys paid to him in reimbursement for his expenses.
11
Petitioner then moved for production of all statements given by the witness to the F.B.I., whether written by the witness or by an F.B.I. agent as the result of interviews with the witness, which related to the witness' testimony on cross-examination, including particularly reports by the witness of his reimbursable expenses and the receipts which he signed evidencing reimbursement for those expenses. The Government opposed production of the documents on the ground that they did not relate to the direct testimony of the witness. It further objected to producing Ondrejka's reports of expenses, and the receipts he had signed when reimbursed for those expenses, on the grounds that they were administrative records of the F.B.I. and were immaterial and irrelevant, but the Government offered to produce a list showing the dates and amounts of the payments and whether they were for services or expenses. Petitioner refused to receive that proffered list. Thereupon, the court denied the motion. Petitioner then moved to strike all of Ondrejka's testimony, and that motion, too, was denied.
12
Petitioner contends that his general demands for 'all statements,' as well as his specific demand for the reports and receipts made by Ondrejka, encompassed, and the trial court erred to his prejudice in denying his motion to require the Government to produce, (1) the notes made by the F.B.I. agents covering Ondrejka's oral reports of expenses and (2) the receipts signed by Sullivan and Ondrejka for moneys paid to them in reimbursement for expenses. He supports these contentions with an elaborate argument which we need not delineate because the Solicitor General now concedes that the F.B.I. notes of Ondrejka's oral reports may have been 'statements' within the meaning of 18 U.S.C. § 3500(e)(2), 18 U.S.C.A. § 3500(e)(2),3 and he flatly concedes that the receipts signed by Sullivan and Ondrejka were 'statements' within the meaning of § 3500.
13
However, the Solicitor General contends that on the actual facts—many of which are not incorporated in the record before us petitioner is not entitled to, and that we should not on this incomplete and imperfect record order, a new trial, because the true facts are that the F.B.I. agents' notes covering Ondrejka's oral reports of expenses were not in existence at the time of the trial, and the receipts signed by Sullivan and Ondrejka do not 'relate to' their direct testimony as required by § 3500, or, if it may be said that any of them do 'relate to' their direct testimony, that the same information, in much greater detail, was given to petitioner in the witnesses' narrative statements that were produced and delivered to his counsel at the trial, and hence if there was any error it was harmless.
14
More specifically, the Solicitor General tells us in his brief that, although the nature of the Government's objections in the courts below implied that the agents' notes were in existence, his interrogation of the F.B.I. agents has disclosed that, after they incorporated the data contained in their notes of Ondrejka's oral reports into the receipts to be signed by him, the agents destroyed the notes in accord with their normal practice, and hence those notes were not in existence at the time of either of petitioner's trials. Although the receipts are not contained in the record before us, the Solicitor General says that there are 124 of them and that a careful examination of them reveals that none of Sullivan's receipts contains any itemization whatever of the nature of the reimbursed expenses, and thus they do not 'relate to' anything mentioned in his direct testimony. With respect to Ondrejka's receipts, the Solicitor General says that, although the Government inadvertently represented to the District Court and the Court of Appeals that the list, proffered to petitioner at the trial and showing the dates and amounts of payments made to Ondrejka, gave all of the information that was contained in the receipts, his examination has disclosed that nine of Ondrejka's receipts do contain some itemization of the nature of his reimbursed expenses, but that only two of the nine can be said to 'relate to' anything mentioned by Ondrejka on his direct examination, and that the same information, in greater detail, was contained in Ondrejka's narrative statements that were produced and delivered to petitioner's counsel at the trial.
15
For these reasons, the Solicitor General contends that, viewed upon the now known and readily available actual facts, no error, at least no prejudicial error, resulted from the nonproduction of the F.B.I. notes and the Sullivan and Ondrejka receipts at the trial. However, the Solicitor General recognizes that petitioner is not bound to accept his statement that the F.B.I. notes of Ondrejka's oral reports of expenses were destroyed in accord with normal practice long prior to the trial, and that petitioner is entitled to an opportunity to examine the F.B.I. agents and other responsible Government officials on these matters which, of course, can be done only in the District Court. He recognizes, too, that his contentions with respect to the receipts signed by Sullivan and Ondrejka necessarily involve a detailed examination and comparison of the lengthy direct testimony of Sullivan and Ondrejka, the 124 receipts, the list showing the dates and amounts of payments to Ondrejka that was proffered to petitioner by the Government at the trial, and the numerous narrative statements by Sullivan and Ondrejka that were produced and delivered to petitioner at the trial, and he submits that this cannot appropriately be done in this Court, especially since neither the receipts nor the proffered list is contained in the present record, but can properly be done only in the District Court. He therefore asks us to vacate the judgment and remand the case to the District Court to hear these issues and to determine whether a new trial should be ordered or the judgment should be reinstated with the right in the petitioner, of course, to appeal from any such judgment to the Court of Appeals.
16
In opposition, petitioner argues that the claimed destruction of the agents' notes admits the destruction of evidence that may have been helpful to him and deprives him of his rights under § 3500 and to due process of law, and therefore the judgment should be reversed. Alternatively, he argues that only he and his counsel could determine the uses that might have been made of the receipts had they been produced, and he concludes that it would not be possible for the District Court, on remand, to find that the failure to produce the receipts was nonprejudicial or harmless error, and that therefore he is entitled to a new trial.
17
As to petitioner's contention that the claimed destruction of the agents' notes admits the destruction of evidence, deprives him of legal rights and requires reversal of the judgment, it seems appropriate to observe that almost everything is evidence of something, but that does not mean that nothing can ever safely be destroyed. If the agents' notes of Ondrejka's oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. Those are the factual representations made by the Solicitor General. Whether they are true can be determined only upon a hearing in the District Court.
18
It is entirely clear that petitioner would not be entitled to a new trial because of the nonproduction of the agents' notes if those notes were so destroyed and not in existence at the time of the trial. It is equally clear that, notwithstanding the fact that the Sullivan and Ondrejka receipts were 'statements' within the meaning of § 3500 and were demanded under that section, petitioner would not be entitled to a new trial because of the nonproduction of those receipts if in truth they do not relate to the direct testimony of those witnesses inasmuch as § 3500(c) requires 'the court (to) excise the portions of (the) statement which do not relate to the subject matter of the testimony of the witness.' The Solicitor General represents that 115 of the 124 receipts signed by Sullivan and Ondrejka do not contain any itemization of the nature of the reimbursed expenses nor relate to the direct testimony of those witnesses. If those representations are true, petitioner would not be entitled to a new trial because of the nonproduction of those 115 receipts. Inasmuch as the receipts are not contained in the record before us, whether the Solicitor General's representations are true can be determined only upon a hearing in the District Court.
19
But the Solicitor General finds that two of Ondrejka's receipts may be said to relate to Ondrejka's direct testimony. However, he says that the same information as they contain and much more on the same subjects was contained in Ondrejka's narrative statements that were produced and delivered to petitioner at the trial, and therefore petitioner could not have been prejudiced by the nonproduction of those two receipts and it not entitled to a new trial on that account. It is true, as petitioner argues, that only the defense is in position to determine the precise uses that may be made of demanded documents, Jencks v. United States, 353 U.S. 657, 668, 77 S.Ct. 1007, 1013, but that is not to say that the harmless error rule is never applicable in respect to the nonproduction of demanded documents. Upon very similar facts, we recently approved a holding that nonproduction of demanded documents was harmless error. Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304. We there said: 'Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness' admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter.' 360 U.S. at 371, 79 S.Ct. at 1234.
20
While, as we said in the Rosenberg case, supra, a 'court should not confidently guess what defendant's attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled * * *, when the very same information was possessed by defendant's counsel as would have been available were error not committed, (a court properly can find that) it would offend common sense and the fair administration of justice to order a new trial.' 360 U.S. at 371, 79 S.Ct. at 1234.
21
If it is true, as the Solicitor General represents, that the information contained on the two Ondrejka receipts had already been given to petitioner in Ondrejka's narrative statements covering the same subjects, it is clear that the District Court properly could find that the error in failing to produce those two receipts was harmless.
22
Accordingly, we vacate the judgment and remand the cause to the District Court for a hearing confined to the issues raised by the Solicitor General's representations as stated in this opinion. The District Court shall make findings of fact on those issues. If the District Court finds that the Solicitor General's representations are true in all material respects, it shall enter a new final judgment based upon the record as supplemented by its findings, thereby preserving to petitioner the right to appeal to the Court of Appeals. If, on the other hand, the District Court finds that the Solicitor General's representations are untrue in any material respect, it shall grant petitioner a new trial.
II. The Instructions to the Jury.
23
Whether the District Court, on remand, grants or denies a new trial, it is obvious that petitioner's contentions respecting the court's instructions to the jury will not be mooted4 and it seems necessary to decide them.
24
Because of the nature of some of petitioner's contentions respecting the instructions, it seems appropriate to make clear just what was the charge upon which petitioner was convicted. He was not charged with criminality for being a member of or affiliated with the Communist Party, nor for participation in any criminal activities of or for the Communist Party. He was not charged with advocating or teaching the overthrow of the Government as was the case in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, or with knowing membership in an organization advocating the overthrow of the Government by force and violence as in Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, and Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836. The charge was that, to enable a labor union of which he was an officer to comply with § 9(h) of the National Labor Relations Act and thus be permitted to use the processes of the Labor Board, petitioner, on December 11, 1952, knowingly made and caused to be transmitted to the Labor Board a false affidavit, saying he was not then a member of or affiliated with the Communist Party when in fact he was both a member of and affiliated with the Communist Party, and that those acts were made criminal and punishable by 18 U.S.C. § 1001, 18 U.S.C.A. § 1001.
25
Nothing in § 9(h) or elsewhere in the Labor Management Relations Act makes or purports to make criminal either membership in or affiliation with the Communist Party, American Communications Ass'n v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925, but § 1001 provides that 'Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies * * * a material fact * * * or makes or uses any false writing or document knowing the same to contain any false * * * statement * * * shall be fined not more than $10,000 or imprisoned not more than five years, or both.' Petitioner was charged with and convicted for violating that statute—of knowingly making and transmitting to the Labor Board on December 11, 1952, an affidavit falsely swearing that he was not a member of or affiliated with the Communist Party—not for being a member of or affiliated with the Communist Party, nor for participating in any activities, lawful or unlawful, of the Communist Party, although, of course, determination of whether the affidavit was true or false requires a determination of whether petitioner was a member of or affiliated with the Communist Party on December 11, 1952. Neither is there any question here about the fact that the evidence was sufficient to make a submissible case for the jury and to support its verdict—notwithstanding petitioner's tangential implications to the contrary. The questions here are simply whether the court's instructions to the jury properly defined membership in and affiliation with the Communist Party.
26
Membership. Petitioner first contends that the instruction respecting membership5 should have defined 'mem bership' as, and required a finding of, 'a definite objective factual phenomenon' or a 'specific formal act of joining' rather than, as was done, in the subjective terms of a state of mind. If petitioner is right in this contention it would follow, despite the fact the question is foreclosed against him, here, that the evidence did not make a submissible case for the jury on Count I of the indictment and his motion for a directed verdict of acquittal on that count should have been granted, for there was no evidence of 'a definite objective factual phenomenon (of joining)' or of 'a specific formal act of joining.' Indeed, the very nature of the case—claimed membership in an underground or secretly operating organization whose membership records, if any, are not available to the Government precludes the possibility of such evidence, and, if the rule were as petitioner contends, false affidavits of non-Communist Party membership could be made and submitted to the Labor Board with impunity. Membership in such a secretly operating organization is, to all but the organization and its member or members, necessarily subjective, and, although it must be proved by evidence of objective facts and circumstances having a rationsl tendency to show, and from which the jury may rationally and logically infer, the ultimate subjective fact of membership, it is, in the very nature of such a case, necessary that the court's instructions define membership in such an organization in subjective terms or not at all.
27
A similar question arising under § 9(h) was presented in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, but the Court's opinion, turning on the document production question, did not reach it. However, Mr. Justice Burton's separate concurring opinion, joined by Mr. Justice Harlan, 353 U.S. at 672, 77 S.Ct. at 1015, and, on the question here considered, also by Mr. Justice Frankfurter, 353 U.S. at 672, 77 S.Ct. at 1015, did reach the question. It found the membership defining instruction given in that case to be deficient because it 'failed to emphasize to the jury the essential element of membership in an organized group—the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member.' 353 U.S., at 679, 77 S.Ct. at 1019. In the instant case, the District Court's instruction to the jury defined membership to the jury in almost precisely that language (see note 5, sixth paragraph). Similar instructions in cases arising under § 9(h) have been held proper by every United States Court of Appeals that has passed upon the question. Fisher v. United States, 231 F.2d 99, 107 (C.A.9th Cir.);6 Lohman v. United States, 251 F.2d 951, 954 (C.A.6th Cir.);7 Lohman v. United States, 266 F.2d 3 (C.A.6th Cir.);8 Travis v. United States, 269 F.2d 928, 942—943 (C.A.10th Cir.).9 From these consistent holdings and upon principle, it seems clear that the instruction's definition of membership was not erroneous under Count I of the indictment.
28
Petitioner next contends that the court's instruction failed to tell the jury precisely what objective circumstances would be sufficient to justify a finding of membership, and that the criteria which it told the jury they might consider in determining the question of membership were too indefinite to give the jury the necessary guidance. Although the ultimate fact of membership in such a case is almost necessarily a subjective one, it may be proved, as we have said, by objective facts and circumstances having a rational tendency to show, and from which the jury rationally and logically may find, the ultimate fact of membership. But, for the purpose of confining the jury's considerations to the relevant evidence, it was proper for the court to outline the objective acts, shown in the evidence, which they might consider in determining the ultimate subjective fact of membership. Here, the court's instruction, after telling the jury that intent is a state of mind and can only be determined by what an individual says and does, went on to say that in determining the issue as to whether the defendant was or was not a member of the Communist Party at the time alleged in the indictment the jury might take into consideration, as circumstances bearing on that question, the acts and statements of the defendant (see note 5, sixth paragraph), and in this connection they might take into consideration whether the defendant did the things set forth in the 12 numbered paragraphs that followed, which it said, were some of the indicia of Communist Party membership (see note 5, eighth paragraph).
29
While the criteria specified in the numbered paragraphs of the challenged instruction were in substance 12 of the 14 criteria specified by Congress in § 5 of the Communist Control Act of 1954 (50 U.S.C. § 844, 50 U.S.C.A. § 844) to be considered by a jury in determining Communist Party membership under that Act, it is unnecessary for us to determine in this case whether that section applies, by force of law, to prosecutions under 18 U.S.C. § 1001, 18 U.S.C.A. § 1001 for making a false affidavit to the Labor Board in purported compliance with § 9(h) of the National Labor Relations Act, for it is obvious that those 12 criteria rationally tend to show, and were sufficient to enable a jury rationally and logically to find, the ultimate fact of membership, though subjective, and hence it was proper, independently of and wholly apart from § 5 of the Communist Control Act of 1954, to tell the jury, as this instruction did, that they might consider those criteria in determining whether the defendant was or was not a member of the Communist Party on the date charged in the indictment.
30
Similar criteria were contained in the membership instruction given in the Jencks case, supra,10 and the opinion of Mr. Justice Burton did not find any error in that aspect of the instruction. Very similar instructions telling the jury that they might consider such or similar criteria in determining the ultimate subjective fact of membership within the meaning of § 9(h) have been consistently and uniformly approved, Hupman v. United States, 219 F.2d 243 (C.A.6th Cir.);11 Fisher v. United States, 231 F. 2d 99, 107 (C.A.9th Cir.).12 In Travis v. United States, 247 F.2d 130, 135, the United States Court of Appeals for the Tenth Circuit reversed because the membership instruction failed to specify and require the jury to consider such criteria in determining the question of membership. On retrial, the jury was instructed to consider virtually the same criteria of membership as was the jury in the instant case. The defendants were again convicted, and, on appeal, the Court of Appeals specifically approved the instruction. Travis v. United States, 269 F.2d 928, 942—943.
31
We think there is no merit in petitioner's contention that the instruction failed adequately to state the objective circumstances that might be considered by the jury in determining membership or that the criteria submitted were too indefinite to give the jury the necessary guidance.
32
Nor is there any merit in petitioner's contention that those criteria allowed a finding of membership on a date other than that charged in the indictment. That contention fails to consider the whole charge, particularly the vital fact that the court repeatedly emphasized to the jury that the issue for them to determine was whether petitioner was or was not a member of the Communist Party on the date that he executed and transmitted the affidavit.
33
Petitioner, and the amici curiae, contend that § 5 of the Communist Control Act of 1954 (50 U.S.C. § 844, 50 U.S.C.A. § 844) is constitutionally invalid in that it violates the First Amendment of the Constitution and denies due process because it permits a jury to base its finding of membership upon statements and acts that are protected by the First Amendment. They then argue that because the challenged instruction substantially adopted 12 of the 14 criteria mentioned in that section this instruction, too, was violative of the First Amendment and denied due process. We have no occasion here to consider the constitutionality of § 5 of the Communist Control Act of 1954 because, as we have said, the indicia which the challenged instruction told the jury to consider as circumstances bearing upon the issue of membership did rationally tend to show, and were sufficient, if believed, to enable the jury rationally and logically to find, the ultimate subjective fact of membership, wholly apart from and independently of § 5 of the Communist Control Act of 1954. To petitioner's argument that the submitted criteria permitted the jury to find membership from statements and acts that were wholly innocent in themselves or even protected by the First Amendment, it is enough to recall that nothing in § 9(h) or elsewhere in the National Labor Relations Act makes or purports to make criminal either membership in or affiliation with the Communist Party, American Communications Ass'n v. Douds, supra, 339 U.S. at 402, 70 S.Ct. at 685, and that petitioner was not charged with criminality for being a member of or affiliated with the Communist Party, nor with participating in any criminal activities of or for the Communist Party, but only, with having made and submitted to the Government an affidavit falsely swearing that he was not a member of or affiliated with the Communist Party in violation of 18 U.S.C. § 1001, 18 U.S.C.A. § 1001. It would be strange doctrine, indeed, to say that membership in the Communist Party—when, as here, a lawful status cannot be proved by evidence of lawful acts and statements, but only by evidence of unlawful acts and statements.
34
Affiliation. We think the court's instruction defining affiliation13 was correct under Count II of the indictment and in accord with all the precedents. A far less complete and definitive instruction on affiliation was given by the trial court in Jencks v. United States, supra, and was challenged in this Court. That instruction merely quoted dictionary definitions and then stated that '(a)ffiliation * * * means something less than membership but more than sympathy. Affiliation with the Communist Party may be proved by either circumstantial or direct evidence, or both.' See 353 U.S. at 679, 77 S.Ct. at 1019. The Court's opinion, turning on the document production problem, did not reach that question. However the opinion of Mr. Justice Burton did reach the question. It did not find the instruction erroneous insofar as it went, but found it to be deficient because 'It did not require a continuing course of conduct 'on a fairly permanent basis' 'that could not be abruptly ended without giving at least reasonable cause for the charge of a breach of good faith," and thus 'allowed the jury to convict petitioner on the basis of acts of intermittent cooperation.' 353 U.S. at 679—680, 77 S.Ct. at 1019. The instruction given in this case contained not only the definition given in the Jencks case (see note 13, paragraph one) but went on to embody almost exactly the expanded definition prescribed by Mr. Justice Burton (see note 13, paragraph two). The opinions of the Court of Appeals have uniformly approved that definition. In Bryson v. United States, 238 F.2d 657, 664, the United States Court of Appeals for the Ninth Circuit found an identical instruction to be 'full and complete' and said that it 'adequately informed the jury of the meaning of the term (affiliated with) and provided an adequate standard for evaluating the evidence.' In Lohman v. United States, 251 F.2d 951, 954, the United States Court of Appeals for the Sixth Circuit, speaking through Judge, now Mr. Justice, Stewart, specifically approved the definition of 'affiliated with' prescribed by Mr. Justice Burton's opinion in the Jencks case; and in Travis v. United States, 247 F.2d 130, 135, the United States Court of Appeals for the Tenth Circuit approved an almost identical instruction.14
35
Petitioner contends that one may not be 'affiliated with' the Communist Party, within the meaning of § 9(h), by any direct relationship with the Party, but only by being a member of another organization that is affiliated with the Party, and that the instruction was erroneous for failure so to advise the jury. If petitioner is right in this contention it would follow, despite the fact the question is foreclosed against him here, that the evidence did not make a submissible case for the jury on Count II of the indictment and his motion for a directed verdict of acquittal on that count should have been granted, for there was no evidence that petitioner was affiliated with the Communist Party through membership in some other organization. It is true that one may be 'affiliated with' the Communist Party through membership in an organization that is affiliated with the Communist Party, American Communications Ass'n v. Douds, supra, 339 U.S. at 406, 421, 450, 70 S.Ct. at 688, 709, but that is not to say one may not do so directly, and every decision that has considered the meaning of 'affiliated with,' as used in § 9(h), has held that one may be directly affiliated with the Communist Party. See Mr. Justice Burton's separate concurring opinion in Jencks v. United States, supra, 353 U.S. at 672, 679, 77 S.Ct. at 1015, 1019; and Bryson v. United States, supra, 238 F.2d at 664; Lohman v. United States, supra, 251 F.2d at 954; Travis v. United States, supra, 269 F.2d at 942.
36
In a manner similar to his attack upon the court's instruction defining membership, petitioner contends that the instruction in question erroneously defined the phrase 'affiliated with' only in subjective terms and without objective criteria. However, just as with regard to membership, affiliation, in relation to Count II in this case, is necessarily subjective. But the ultimate fact of affiliation, though subjective, may be proved by evidence of objective facts and circumstances having a rational tendency to show, and from which the jury may rationally and logically find, the ultimate fact of affiliation. It cannot be disputed here that there was such evidence at the trial. The court's instruction told the jury that '(w)hether or not the defendant was affiliated with the Communist party * * * is a question of fact which you are to determine from all the evidence in the case,' and that their determination should be based on the 'statements made or acts done by the accused, and all other facts and circumstances in evidence * * *.' We think that instruction was adequate.
37
Petitioner argues that because the first paragraph of the instruction stated that affiliation 'means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party,' and the third paragraph of the instruction stated that 'affiliation * * * means a relationship which is equivalent or equal to that of membership in all but name,' it was contradictory and confusing. We agree that the third paragraph appears inconsistent with the first. However, it is evident that the erroneous third paragraph could not have prejudiced petitioner for it, though inconsistent with the correct first paragraph, exacted a higher standard of proof of affiliation than the law required.
38
Petitioner, quite understandably, would require instructions as specific as mathematical formulas. But such specificity often is impossible. The phrases 'member of' and 'affiliated with,' especially when applied to the relationship between persons and organizations that conceal their connection, cannot be defined in absolute terms. The most that is possible, and hence all that can be expected, is that the trial court shall give the jury a fair statement of the issues—i.e., whether petitioner was a member of or affiliated with the Communist Party on the date of his affidavit—give a reasonable definition of the terms and outline the various criteria, shown in the evidence, which the jury may consider in determining the ultimate issues. We believe that the instructions in this case, which are consistent with all the judicial precedents under § 9(h), adequately met those tests.
39
Accordingly, the judgment is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
40
Judgment vacated and case remanded to District Court.
41
Mr. Justice BLACK, dissenting.
42
As a prerequisite to his union's right to seek relief from unfair labor practices before the National Labor Relations Board, petitioner was compelled to subscribe to an oath which stated: (1) 'I am not a member of the Communist Party or affiliated with such Party;' and (2) 'I do not believe in, and I am not a member of nor do I support any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.' The Government now claims that in submitting to this compulsion petitioner made false statements as to his membership in and affiliation with the Communist Party, and on the basis of these allegedly false statements it seeks to send petitioner to prison. I agree with Mr. Justice DOUGLAS that if the Government is to be allowed to do this sort of thing at all, it should only be upon a showing that petitioner was a member who engaged in illegal activities in connection with his Communist Party membership. But I wish also to reiterate my own belief that our Constitution, properly interpreted and applied, would prohibit this prosecution completely—regardless of the nature of petitioner's connection with the Communist Party. I think the Constitution absolutely prohibits the Government from sending people to jail for 'crimes' that arise out of, and indeed are manufactured out of, the imposition of test oaths that invade the freedoms of belief and political association—freedoms which the Founders of our Nation recognized as indispensable to a democratic society.
43
The test oath is an historic weapon against religious and political minorities, but the fact that this practice has survived the centuries surely cannot be pointed to either as a source of pride or, in my judgment, as evidence that the practice is constitutional. Quite the contrary, I think that history shows test oaths to be one of the most generally and continuously hated and dangerous forms of governmental intrusion upon individual freedom that liberty-loving people have had to contend with. It was squarely in the face of this history of almost universal condemnation that this Court, in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, upheld the test oath requirement upon which this prosecution is based, resting its decision upon the ground that however obnoxious test oaths may be, they must be endured in the interest of interstate commerce. Eleven years have elapsed since that decision and I think it is fair to say that this recent experience with test oaths in this country has done nothing to change the evil reputation they gained throughout previous centuries in other countries. The question before us now is thus no different from that originally presented to us in Douds: Can Congress, in the name of regulation of interstate commerce, circumvent the history, language and purpose of our Bill of Rights and impose test oaths designed to penalize political or religious minorities? I would overrule the decision in Douds and order this prosecution dismissed. As I said there, 'Whether religious, political, or both, test oaths are implacable foes of free thought. By approving their imposition, this Court has injected compromise into a field where the First Amendment forbids compromise.' Id., at 448, 70 S.Ct. at 709.
44
Mr. Justice DOUGLAS has asked me to add the following: 'I deduce from what the Court does today that the Douds decision was good for one Monday only and that it is being overruled sub silentio on the point now in issue. I did not participate in the Douds decision as I was necessarily absent when it was argued. I would, however, be content to decide this case within the framework which the Douds case established. Yet since the Douds decision is now apparently discarded on the point in issue, and since we face anew the precise question it tendered, I see no constitutional answer to the opinions of Mr. Justice BLACK in that case and in the present one that Congress has no power to exact from people affirmations or affidavits of belief, apart from the accepted form of oath of office demanded of all officials.' Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
45
This is a prosecution under 18 U.S.C. § 1001, 18 U.S.C.A. § 1001 which penalizes the making of false statements on a matter within the jurisdiction of a federal agency. The false statements charged in the indictment involve 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h), which is § 9(h) of the National Labor Relations Act—the provision that required1 the filing of the so-called non-communist affidavit before the National Labor Relations Board could entertain petitions of a union. See Leedom v. International Union, 352 U.S. 145, 77 S.Ct. 154, 1 L.Ed.2d 201. One count charged that petitioner's affidavit, filed under § 9(h), that he was not 'a member of the Communist Party' was false. A second count charged that the affidavit was also false in averring he was not 'affiliated' with that party. After a jury trial, petitioner was convicted under both counts and sentenced to terms that run concurrently.
46
An instruction, offered by defendant and refused by the Court, reads as follows:
47
'Whether intermittent or repeated, the act or acts tending to prove membership and that both the defendant and the communist party intended such a relationship to exist on December 11, 1952, must be of that quality which indicates an adherence to or a furtherance of the illegal purposes or objectives of the communist party as distinguished from mere cooperation with it in lawful activities. The act or acts must evidence a working alliance to bring the illegal program to fruition. Unless there is evidence which convinces you beyond a reasonable doubt of some illegal purpose or objective of the communist party on December 11, 1952 and that the relationship between the defendant and the communist party on and after this date was a relationship based on the illegal purpose or objective, you must acquit the defendant on Count I of the indictment.'
48
I do not see how denial of this instruction was consistent with the Court's decision in Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. In that case, as in the present one, the Court dealt with the constitutionality of the 'Affidavit of Noncommunist Union Officer.' The affidavit now, as then, reads as follows:
49
'The undersigned, being duly sworn, deposes and says:
50
'1. I am a responsible officer of the union named below.
51
'2. I am not a member of the Communist Party or affiliated with such party.
52
'3. I do not believe in, and I am not a member of nor do I support any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.'
53
It was this affidavit that petitioner executed.
54
In Douds the Court sustained the constitutionality of the required affidavit by tailoring it to exclude membership that did not include belief in the overthrow of the government by force or other illegal or unconstitutional means. Chief Justice Vinson said for the Court:
55
'We hold, therefore, that the belief identified in § 9(h) is a belief in the objective of overthrow by force or by any illegal or unconstitutional methods of the Government of the United States as it now exists under the Constitution and laws thereof.' 339 U.S. 382, 407—408, 70 S.Ct. 674, 688.
56
Mr. Justice Frankfurter, who joined the Court's opinion, filed a separate opinion in which he pin-pointed one of the objections running to the broad definition now, as well as then, given the term 'member':
57
'I cannot deem it within the rightful authority of Congress to probe into opinions that involve only an argumentative demonstration of some coincidental parallelism of belief with some of the beliefs of those who direct the policy of the Communist Party, though without any allegiance to it. To require oaths as to matters that open up such possibilities invades the inner life of men whose compassionate thought or doctrinaire hopes may be as far removed from any dangerous kinship with the Communist creed as were those of the founders of the present orthodox political parties in this country.
58
'The offensive provisions of § 9(h) leave unaffected, however, the valid portions of the section. In § 16, Congress has made express provision for such severance. Since the judgments below were based in part on what I deem unconstitutional requirements, I cannot affirm but would remand to give opportunity to obey merely the valid portions of s 9(h).' 339 U.S. 382, 422, 70 S.Ct. 674, 696.
59
Beliefs are as much in issue here as they were in the Douds case. If that case means anything, it means that one who was a member only to promote a lawful cause of the party should not be subjected to the legal odium that attaches to full-fledged members. The fact that one believes in peace, disarmament, a ban on nuclear testing, or the disbandment of NATO may put him out of step with the majority. But unless we toss to the winds the tolerance which a Free Society shows for unorthodox, as well as orthodox, views, the fact that a person embraces lawful views of the party should not establish that he is a 'member' of the party within the meaning of the Act. Membership, as that word is used in the Act, should be proved by facts which tie the accused to the illegal aims of the party. If beliefs are used to condemn the individual, we have ourselves gone a long way down the totalitarian path.
60
Killian's association with the party appears to have been restricted to lawful purposes: he was against this country's policies in Indo-China; he was for the recognition of Red China; he was against colonialism; he was against war; he urged people to subscribe to The Daily Worker. He attended party meetings, promoted a united front, discussed current political events, recruited Negroes for party membership, and the like. If his attendance at the meetings was for an illegal purpose, I have failed to find it in the record. I find no evidence that Killian used his affiliation with the party to promote immediately or even at long range the overthrow of the government. I find no evidence that he organized violence, promoted sabotage, collected arms, or spied for a foreign power. If he lied in his affidavit, he lied about his beliefs. But insofar as the record shows, he had a right to promote those beliefs alone or in association with others. All the beliefs I find espoused by Killian in this record were protected by the First Amendment. He had a right to advocate them alone or in conjunction with others.2 Some causes espoused by the Communist Party may be wholly lawful. Such was the case in De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, where speeches were made 'against illegal raids on workers' halls and homes and against the shooting of striking longshoremen' by the police and 'against conditions in the county jail,' id., at 359, 57 S.Ct. at 257. That 'peaceable assembly' and that 'lawful public discussion' (id., at 365, 57 S.Ct. at 260) were held not subject to punishment, even though the meeting was under the auspices of an organization that might have been prosecuted for other activities. If the De Jonge case means anything, it means there must be a separation of the lawful from the unlawful activities of a party when a 'member' is summoned to account for his actions.
61
In varied situations this Court has refused to bring down on people heavy penalties for being a 'Communist' or for being 'affiliated' with that party where the acts to prove it were intrinsically innocent.
62
The Court took that view in cases under the Smith Act. Scales v. United States, 367 U.S. 203, 222, 81 S.Ct. 1469, 1482, 6 L.Ed.2d 782:
63
'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 * * * but also for two other reasons: It is not to be lightly inferred that Congress intended to visit upon mere passive members the heavy penalties imposed by the Smith Act. 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 even-handed application of the statute.'
64
In light of the Scales decision and the prior decision in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, it is difficult to see why, if membership is to be punished, a different standard should be applied here from that applied in the Smith Act. The constitutional overtones are as pronounced here as they were in Yates and Scales. Attributing to Congress a purpose to impose punitive measures 'upon mere passive members' is as unwarranted here as in those other situations. We should say here what was said in Scales, supra, 367 U.S. pp. 229—230, 81 S.Ct. p. 1486.
65
'The clause does not make criminal all association with an organization, which has been shown to engage in illegal advocacy. There must beclear 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. p. 290,) 81 S.Ct. (1517,) at page 1522. Thus the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within 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.' Cf. Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140.
66
To convict petitioner for membership linked only to the lawful objectives of the party is inconsistent with the holding in the De Jonge case, with what the Court did in Yates and Scales, and with the definition of 'member' spelled out with particularity in the Douds case.
67
It may be that a jury on this record could find that petitioner was a member who adhered to the illegal purposes of the Communist Party. But unless the issues are so restricted, beliefs that were held in the Douds case to be immune from the Government's inquiry now become elements of a crime.
68
Mr. Justice BRENNAN, dissenting.
69
I dissent because I think the instructions to the jury on the crucial definitions of membership and affiliation were fatally defective in light of our decision 12 years ago in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 677, 94 L.Ed. 925. The trial judge refused to give the following instruction requested by the petitioner:
70
'The communist party, like other voluntary organizations, sets forth conditions which a person must accept in order to become and remain a member. The burden is on the prosecution to prove beyond a reasonable doubt what the conditions for such membership were on the date in question, whether found in its constitution or elsewhere, and that the defendant accepted these conditions.'1
71
In my view such an instruction was required under our decision in Douds and it was error to refuse it.
I.
72
Douds sustained § 9(h) against constitutional challenge. Its constitutionality was sustained not, as here, within the limited framework of a perjury prosecution but rather in the large—against the broadside challenges arising from denials of recourse to the processes of the National Labor Relations Board to unions whose officers refused to execute the required affidavits. In that context an interpretation of 'member' clearly emerges from the Douds decision. Yet in this case, which squarely presents an issue as to the correctness of an instruction on the meaning of 'member' as used in § 9(h), the majority makes not a single reference to that interpretation, which is at war with the majority's holding here.
73
Only six members of the Court participated in Douds. Chief Justice Vinson wrote an opinion for himself and Justices Reed and Burton. Mr. Justice Frankfurter wrote a separate opinion but, as regards the issue immediately to be discussed, Chief Justice Vinson also spoke for him.
74
The opinion of Chief Justice Vinson is partially a bifurcated one, distinguishing the clause forswearing membership in or affiliation with the Communist Party,2 which this case implicates, from the 'belief' clause3 under which the Government does not here charge the petitioner with false swearing.
75
As to the 'membership' portion of the oath, the opinion of the Chief Justice held for the majority of the participating Justices that Congress could validly impute to the Communist Party an institutional predilection for political strikes, and could reasonably act on the assumption that members of the Party or its affiliates would partake of that predisposition. As the Chief Justice's opinion saw it, the crucial issue as to this part of the oath was whether, granting the permissibility of the assumptions, s 9(h) incorporated an allowable mode of regulation in view of its undoubted inhibiting effect upon participation in legitimate Party activities within the ambit of the First Amendment. The opinion held for constitutionality, concluding that the public interest in preventing political strikes justified the tangential interference with legitimate activity. No definitional problem respecting 'member' or 'affiliate' was considered in this context.
76
Coming to the 'belief' clause, however, the Chief Justice found it necessary to construe that portion of the oath as referring to belief in violent overthrow 'as an objective, not merely a prophecy.'4 His view was that the clause, assisted by this gloss, presented no different problem from that already discussed in connection with membership, with one exception which is crucial for our purposes. The special problem which the Chief Justice perceived was one of proof:
77
'Insofar as a distinction between beliefs and political affiliations is based upon absence of any 'overt act' in the former case, it is relevant, if at all, in connection with problems of proof. In proving that one swore falsely that he is not a Communist, the act of joining the Party is crucial. Proof that one lied in swearing that he does not believe in overthrow of the Government by force, on the other hand, must consist in proof of his mental state. To that extent they differ.
78
'To state the difference, however, is but to recognize that while objective facts may be proved directly, the state of a man's mind must be inferred from the things he says or does. Of course we agree that the courts cannot 'ascertain the thought that has had no outward manifestation.' But courts and juries every day pass upon knowledge, belief and intent the state of men's minds—having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. * * * False swearing in signing the affidavit must, as in other cases where mental state is in issue, be proved by the outward manifestations of state of mind. In the absence of such manifestations, which are as much 'overt acts' as the act of joining the Communist Party, there can be no successful prosecution for false swearing.'5
79
It was, of course, obvious to the Court in Douds that the belief portion of the oath referred to a subjective phenomenon—the affiant's internal attachment to the goal of violent overthrow which would have to be provable wholly through his statements and writings—'the outward manifestations of state of mind.' But it is equally obvious that the Douds Court had no notion that membership could be taken as signifying a subjective relationship of mutuality, provable by actions not particularly bespeaking an externally manifested tie. For it is clear beyond cavil that, to the Court in Douds, a conviction under the membership clause required evidence from which could be inferred the existence, beyond a reasonable doubt, of an 'objective fact'—'the act of joining the Party.' That this is so only becomes more apparent from examination of the separate opinions of Justices Frankfurter6 and Jackson.7 It is evident that the five Justices who sustained the membership clause considered membership to involve an externally manifested act or acts of association and admission, understood as such by the Party and by the member. This is the 'Douds sense' of membership to which I subsequently refer.
80
Accordingly, since the Court today authorizes an instruction which permits a jury to convict of false swearing as to membership, conceived as a purely subjective phenomenon, without the jury's having had to conclude that membership in the Douds sense existed, it goes beyond Douds and repudiates a critical assumption of that decision.8
II.
81
The district judge's instruction concerning membership is most effectively dealt with by considering, first, his definition of 'membership,' and, second, his enumeration of facts by which membership so defined could be proven.
82
The entire definition of membership was this:
83
'Membership in the Communist Party, the same as membership in any other organization, constitutes the state of being one of those persons who belong to or comprise the Communist Party. It connotes a status of mutuality between the individual and the organization. That is to say, there must be present the desire on the part of the individual to belong to the Communist Party and a recognition by that Party that it considers him as a member.'
84
All must agree that it is in the third sentence alone that the definition resides; for the first sentence is mere tautology, while the second is far too vague to be of any help whatever. The most striking thing about the third sentence is that, although it is ambiguous, standing alone it might possibly be thought consistent with Douds.9 'Recognition' by the Party that it 'considers' one to be a member might suggest the objective manifestation of acceptance—the externalized establishment of the tie—which Douds conceived to be necessary to the relationship. The additional element of 'desire on the part of the individual to belong' would simply except from 'membership' a formal association entered into unwittingly or on account of duress.10 But, if the definition of membership in question does omit the Douds element of objective, outward alliance—as I believe it does, in light of the instructions which followed—then its application in this case raises a grave question of fair warning.
85
Douds was decided on May 8, 1950. Two and one-half years later, on December 11, 1952, Killian swore that he was not a member of the Communist Party. Why he should have supposed that he was disavowing anything except objectively manifested Douds-sense membership—the most natural meaning to impute to the oath, and the one explicitly assumed by the Court in upholding the constitutionality of its exaction—I cannot imagine. To convict him of perjury now, on the assumption that membership may exist without externalized application to and acceptance into the organization, is to trap petitioner in the backlash of an unpredicatable shift in construction.
III.
86
For the reasons above stated, I conclude that the district judge's definition of 'membership' could have been correct only if it meant, and reasonably must have been taken to mean, that some objective act of joining and acceptance is a requisite element. The judge did not rest with his definition of membership, but went on to instruct the jury what evidence it could consider in determining the membership issue. I do not reach the question whether the evidence in this case was sufficient to convict under a proper instruction. It is not necessary to hold that direct proof of the act of joining is required, in order to conclude that, because so many of the matters enumerated by the judge are devoid of any rational tendency to show membership in the Douds sense, the conviction must be reversed. The effect of this part of the instruction was either to authorize the jury to consider evidence not relevant to membership as properly defined, or to lead it into thinking that it might convict although it never found membership in the Douds sense.11
87
Among the indicia of membership which the jury was authorized to consider were the following:
88
(a) Whether the petitioner 'paid dues or made any financial contributions to the Communist Party or collected any funds on its behalf.'
89
(b) Whether the petitioner 'attended Communist Party meetings, classes, conferences, or any other type of Communist Party gathering.'
90
(c) Whether petitioner 'has been accepted to his knowledge as an officer or member of the Communist Party, or as one to be called upon for services by other officers or members of the Communist Party.'
91
(d) Whether petitioner 'has conferred with officers or other members behalf of any plan or enterprise of inhalf of any plan or enterprise of the Communist Party.'
92
(e) Whether petitioner 'has advised, counseled, or in any other way imparted information, suggestions, or recommendations, to officers or members of the Communist Party, or to anyone else, in behalf of the Communist Party.'
93
(f) Whether petitioner 'has spoken or in any other way communicated orders, directives or plans of the Communist Party.' (Emphasis added.)
94
Surely the enumerated italicized indicia are too free-wheeling and open-ended to be permissible descriptions of factual phenomena from which the existence of membership in anything resembling the Douds sense might be inferred. And the error was compounded; for the jury were instructed that they might consider whether the petitioner 'has indicated by word, action, conduct, writing, or in any other way, a willingness to carry out in any manner and to any degree the plans, objectives or designs of the Communist Party'; or whether he 'has in any other way participated in the activities, planning or actions of the Communist Party.' Surely it cannot be said that such indicia are probative of membership in any sense of that term which could justify a legislative assumption that membership, so defined, imported a dangerous possibility of resort to political strikes the very premise of constitutionality in Douds.
95
To sum up: Either the enumerated factual matters recommended to the jury's consideration by the instruction were in significant measure irrelevant, or they betokened a definition of membership which so radically departs from our own previous understanding that (a) the constitutionality of § 9(h) should be reconsidered in its light and (b) it is grossly unfair to convict Killian of perjury on the basis of this new definition which he cannot be held to have foreseen, swearing, as he did, but two and one-half years after the Douds decision was announced. The District Court should have drafted an instruction which would have required the jury—in order to return a conviction—to have concluded that Killian was a member in the Douds sense. This it clearly failed to do. I therefore think that the conviction on Count I must be reversed.
IV.
96
I think that the same fatal defects inhere in the instruction on 'affiliation.' My Brother Frankfurter in Douds expressed the view that to avoid questions of unconstitutionality, affiliation should be construed in § 9(h) as limited to proof of actual membership 'in an organization that is in fact a controlled cover for (the Communist) * * * Party,'12 and all who joined the Chief Justice's opinion manifested their understanding that this was what affiliation meant.13 No instruction in this form was given. However, unlike the case as to 'membership,' no instruction embodying the Douds definition of 'affiliation' was requested nor did petitioner's counsel in objecting to the instruction rely on the Douds interpretation. I, therefore, can see no basis for a reversal of the conviction under Count II. Fed.Rules Crim.Proc. 30, 18 U.S.C.A.
V.
97
Since my views have not prevailed as regards the instructions and the instructions actually given have been sustained, I must say a word as to the Court's disposition of the Jencks issue. I agree with the disposition which remands the cause to the District Court for a hearing confined to the issues raised by the Solicitor General's representations. See Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428. I also agree that if the trial court finds that the information contained on the two Ondrejka receipts had already been given to petitioner in other statements of Ondrejka earlier turned over to petitioner, the District Court could find that the error in failing to produce those two receipts was harmless. Rosenberg v. United States, 360 U.S. 367, 377, 79 S.Ct. 1231, 1237, 3 L.Ed.2d 1304, footnote (dissenting opinion). But if the information on the receipts has not been given to petitioner in other statements of Ondrejka, I think the district judge must order a new trial for the reasons stated in my dissent in Rosenberg v. United States, 360 U.S. 367, 373, 79 S.Ct. 1231, 1235.
1
Section 9(h), 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h), provided in pertinent part that 'No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 160 of this title, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelvemonth period by each officer of such labor organization * * * that he is not a member of the Communist Party or affiliated with such party * * *.' This section was repealed by Pub.L. 86—257, 86th Cong., 1st Sess., § 201(d), 73 Stat. 519, 525.
2
18 U.S.C. § 1001, 18 U.S.C.A. § 1001, provides:
'Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.'
3
The Solicitor General concedes that the F.B.I. notes of Ondrejka's oral reports may have come within the meaning of 'statement' as defined by 18 U.S.C. § 3500(e)(2), 18 U.S.C.A. § 3500(e)(2), namely, 'a stenographic * * * recording * * * 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.'
4
These instruction questions are not likely to be mooted on remand, because if a new trial is granted it is probable, since the Court of Appeals has already approved them, the District Court would give the same or similar instructions to the jury on the new trial, and, if petitioner should be convicted, the same question would likely be brought here again. If we then disapproved the instructions, a fourth trial would be necessary. If, on the other hand, the District Court denies a new trial and enters a new judgment, it is likely that the Court of Appeals would again approve these instructions and that the same questions would be brought here again.
5
The instruction respecting membership was as follows:
'The crucial issue of fact in this case is whether on December 11, 1952, John Joseph Killian was or was not then a member of the Communist Party or affiliated with such Party.
'The affidavit does not call upon any person to state whether or not in the past he has ever been a member of the Communist Party or affiliated with it. A person who has been at some time in the past a member of the Communist Party or affiliated with that Party but who has terminated such membership or affiliation prior to the making of the affidavit would be entitled to sign the affidavit under oath without violating the law.
'Since the affidavit speaks in the present tense only, the fundamental issue of fact for you to decide is whether or not at the time
alleged in the indictment the defendant knowingly and willfully used an affidavit which was false and which he knew to be false at that time.
'Whether or not the defendant was a member of the Communist Party at the time alleged in the indictment is a question of fact which you are to determine from all of the evidence in the case. In determining this question you must bear in mind that the burden of proof rests on the Government to prove the defendant guilty beyond a reasonable doubt. Membership or lack of membership in the Communist Party may be established by direct as well as circumstantial evidence.
'Membership in the Communist Party, the same as membership in any other organization, constitutes the state of being one of those persons who belong to or comprise the Communist Party. It connotes a status of mutuality between the individual and the organization. That is to say, there must be present the desire on the part of the individual to belong to the Communist Party and a recognition by that Party that it considers him as a member.
'Intent is a state mind and can only be determined by what an individual says and what he does. In determining the issue as to whether the defendant was or was not a member of the Communist Party at the time alleged in the indictment you may take into consideration the acts and statements of this defendant, as disclosed by the evidence, bearing in mind that individual and unrelated isolated acts of the defendant showing cooperation with the Communist Party or isolated statements of the defendant showing sympathy with the
Communist Party are not in themselves conclusive evidence of membership but are circumstances which you may take into consideration along with all the other evidence in this case.
'In determining whether or not the defendant was a member of the Communist Party at the time alleged in the indictment you may take into consideration whether the defendant:
'1. Paid dues or made any financial contributions to the Communist Party or collected any funds on its behalf;
'2. Attended Communist Party meetings, classes, conferences, or any other type of Communist Party gathering;
'3. Had made himself subject to the discipline of the Communist Party in any form whatsoever;
'4. Participated in any recruiting activities on behalf of the Communist Party;
'5. Has executed orders, plans or directives of any kind of the Communist Party;
'6. Has acted as an agent, messenger, correspondent, organizer, or in any other capacity in behalf of the Communist Party;
'7. Has been accepted to his knowledge as an officer or member of the Communist Party, or as one to be called upon for services by other officers or members of the Communist Party;
'8. Has conferred with officers or other members of the Communist Party in behalf of any plan or enterprise of the Communist Party;
'9. Has spoken or in any other way communicated orders, directives or plans of the Communist Party;
'10. Has advised, counseled, or in any other way imparted information, suggestions, or recommendations, to officers or members of the Communist Party, or to anyone else, in behalf of the Communist Party;
'11. Has indicated by word, action, conduct, writing, or in any other way, a willingness to carry out in any manner and to any degree the plans, objectives or designs of the Communist Party;
'12. Has in any other way participated in the activities, planning or actions of the Communist Party;
'These are some of the indicia of Communist Party membership but you are not limited solely to those I have enumerated. As sole
arbiters of the facts, it is your duty to consider all the evidence, either direct or circumstantial, which bears upon the question of whether or not the defendant was a member of the Communist Party on the date alleged in the indictment.
'In determining this question, you must bear in mind that the burden of proof rests upon the Government to prove the defendant guilty beyond a reasonable doubt. If you find that the Government has sustained this burden by proving beyond a reasonable doubt that the defendant was a member of the Communist Party on December 11, 1952, as alleged in the indictment, and if you find, also, that the Government has proved beyond a reasonable doubt the other essential elements of the offense charged in the first count of the indictment, as I have outlined them to you, then you must find the defendant guilty as to the first count.'
6
In Fisher v. United States, supra, the Court of Appeals for the Ninth Circuit said: 'Membership is composed of a desire on the part of the person in question to belong to an organization and acceptance by the organization. Moreover, certain actions are usually required such as paying dues, attending meetings and doing some of the work of the group.' 231 F.2d at 107.
7
In Lohman v. United States, supra, the Court of Appeals for the Sixth Circuit, speaking through Judge, now Mr. Justice, Stewart, said: 'Membership should be so defined as to emphasize to the jury the necessity of finding that the appellant desired to belong to the Communist Party, and that the Communist Party recognized that it considered him as a member. Jencks v. United States, 353 U.S. at pages 657, 679, 77 S.Ct. 1007, 1019 (concurring opinion); Fisher v. United States, 9 Cir., 1956, 231 F.2d 99, 106—107; Travis v. United States, 10 Cir., 1957, 247 F.2d 130, 135—136 * * *.'
8
On retrial of the Lohman case, supra, the trial court defined membership for the jury as directed by the Court of Appeals on the first appeal (see note 7) and the defendant was again convicted. On appeal, the Court of Appeals for the Sixth Circuit reapproved that instruction. Lohman v. United States, 266 F.2d at 4.
9
In Travis v. United States, supra, the Court of Appeals for the Tenth Circuit said of the membership instruction, precisely like the one here, that 'The instructions were meaningful and clear. They included 11 of the 14 indicia of membership outlined by Congress in Section 5 of the Communist Control Act of 1954 (50 U.S.C.A. § 844) and emphasized the primary element of membership as suggested by Mr. Justice Burton in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1019, 1 L.Ed.2d 1103, that there must be present 'the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member.' This adequately outlined the kind of acts that could be considered evidence of membership and included the idea of the continuing reciprocal relationship necessary for that status.' 269 F.2d at 942—943.
10
Compare the Jencks instruction, 353 U.S. at 679, 77 S.Ct. 1019, with the 12 numbered paragraphs in note 5.
11
In Hupman v. United States, supra, the Court of Appeals for the Sixth Circuit said that a very similar instruction was 'fair (and) substantially covered the crucial questions of law, with a careful analysis of the elements of the offense charged.' 219 F.2d at 249.
12
In Fisher v. United States, supra, the Court of Appeals for the Ninth Circuit, in dealing with a similar question, said: 'The jury should have been reminded of the components of the term membership rather than be supplied with synonyms.' 231 F.2d at 107.
13
The instruction respecting affiliation was as follows:
'The verb 'affiliated,' as used in the Second Count of the indictment, means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party.
'A person may be found to be 'affiliated' with an organization, even though not a member, when there is shown to be a close working alliance or association between him and the organization, together with a mutual understanding or recognition that the organization can rely and depend upon him to cooperate with it, and to work for its benefit, for an indefinite future period upon a fairly permanent basis.
'Briefly stated, affiliation as charged in the Second Count of the indictment, means a relationship which is equivalent or equal to that of membership in all but name.
'Whether or not the defendant was affiliated with the Communist Party at the time alleged in the indictment is a question of fact which you are to determine from all the evidence in the case. Affiliation or lack of affiliation in the Communist Party may be established by direct as well as circumstantial evidence.
'In determining the issue as to whether the defendant was or was not affiliated with the Communist Party at the time alleged in the indictment, you may take into consideration any statements made or acts done by the accused, and all other facts and circumstances in evidence which may aid determination of the issue.'
14
Compare United States ex rel. Kettunen v. Reimer, 79 F.2d 315 (C.A.2d Cir.), and Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, defining the term affiliation but as used in the deportation statutes.
1
It was repealed by the Act of September 14, 1959, 73 Stat. 519, 525.
2
'It is altogether impossible to reason from the opinions which a man professes to his feelings and his actions; and in fact no person is ever such a fool as to reason thus, except when he wants a pretext for persecuting his neighbours. A Christian is commanded, under the strongest sanctions, to be just in all his dealings. Yet to how many of the twenty-four millions of professing Christians in these islands would any man in his senses lend a thousand pounds without security? A man who should act, for one day, on the supposition that all the people about him were influenced by the religion which they profess, would find himself ruined before night; and no man ever does act on that supposition in any of the ordinary concerns of life, in borrowing, in lending, in buying, or in selling. But when any of our fellow-creatures are to be oppressed, the case is different. Then we represent those motives which we know to be so feeble for good as omnipotent for evil. Then we lay to the charge of our victims all the vices and follies to which their doctrines, however remotely, seem to tend. We forget that the same weakness, the same laxity, the same disposition to prefer the present to the future, which make men worse than a good religion, make them better than a bad one.' Macaulay's Essays (N.Y.1869), p. 668.
1
This is the third paragraph of Defendant's Proposed Instruction No. 16—17, found at pp. 606—608 of the trial transcript on file with the Clerk.
2
I.e., 'that he is not a member of the Communist Party or affiliated with such party.'
3
I.e., 'that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.'
4
339 U.S. at 407, 70 S.Ct. at 688.
5
Id., at 410—411, 70 S.Ct. at 690. (Emphasis added.)
6
My Brother Frankfurter joined in the opinion of the Chief Justice as it related to the membership portion of the oath. He agreed that the membership clause was constitutional, and that the belief clause would have been constitutional had it been susceptible of the gloss endowed by the Chief Justice. His understanding of the meanings to be attributed to 'member' and 'affiliate' clearly emerges from the following, read in light of his holding that the membership clause is constitutional:
'If I possibly could, to avoid questions of unconstitutionality, I would construe the requirements of § 9(h) to be restricted to disavowal of actual membership in the Communist Party, or in an organization that is in fact a controlled cover for that Party or of active belief, as a matter of present policy, in the overthrow of the Government of the United States by force.' 339 U.S. at 421—422, 70 S.Ct. at 695. (Emphasis added.)
7
To Mr. Justice Jackson, writing separately, the belief portion of the oath appeared unconstitutional. He agreed that the membership clause could withstand attack, but only because of certain peculiar characteristics he discerned in the Communist Party and in the condition of membership in it. Underlying his holding was the proposition that the Communist Party was a foreign-controlled organization dedicated to the seizure of power by force; but the final, and crucial, link in the chain of reasoning was his characterization of membership in the party:
'Membership in the Communist Party is totally different (from membership in other political parties). The Party is a secret conclave. Members are admitted only upon acceptance as reliable and after indoctrination in its policies, to which the member is fully committed. They are provided with cards or credentials, usually issued under false names so that the identification can only be made by officers of the Party who hold the code. Moreover, each pledges unconditional obedience to party authority.' Id., at 432, 70 S.Ct. at 700.
It was the forswearing of this type of membership—and no other—which Mr. Justice Jackson held that Congress constitutionally could require.
8
Since Douds can be authority for the constitutionality of the membership clause of § 9(h) only with respect to the Court's clear understanding there of the meaning of 'member,' today's approval of a substantially altered definition appears to make necessary a new piece of constitutional adjudication. To put it another way, there is implicit in the majority's opinion—though unspoken—a holding that § 9(h) is constitutional with the definition of membership which omits the Douds requirement. Because I think that the trial judge's erroneous instruction itself required reversal, I express no view on this constitutional question. Nor is this a matter without real significance. The Douds Court found 'delicate and difficult,' 339 U.S. at 400, 70 S.Ct. at 684, the problem whether membership in the narrow sense there used sufficiently justified an inference of the likelihood of political strikes to warrant the resulting inhibition of protected activity. To substitute for the narrow definition of membership a concept the existence of which is provable by the acts enumerated by the district judge, see infra, 368 U.S., pp. 274—275, 82 S.Ct., pp. 325—326, quite clearly creates the need for a fresh exercise of judgment.
9
For this reason, I do not understand that the brief suggestion of three members of the Court in Jencks, 353 U.S. at 679, 77 S.Ct. at 1019, that membership be defined in language similar to that of the third sentence, lends any support to today's new holding that membership may be conceived for our purposes as a strictly subjective phenomenon.
10
Compare Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140.
11
The effect of the enumerated indicia surely was not sufficiently dispelled by the halting admonition that 'individual and unrelated isolated acts of the defendant showing cooperation with the Communist Party or isolated statements of the defendant showing sympathy with the Communist Party are not in themselves conclusive evidence of membership * * *.' Transcript, 705. (Emphasis added.)
12
339 U.S. at 421, 70 S.Ct. at 695.
13
Id., at 406, 70 S.Ct. at 688.
| 23
|
368 U.S. 157
82 S.Ct. 248
7 L.Ed.2d 207
John Burrell GARNER et al., Petitioners,v.STATE OF LOUISIANA. Mary BRISCOE et al., Petitioners, v. STATE OF LOUISIANA. Jannette HOSTON et al., Petitioners, v. STATE OF LOUISIANA.
Nos. 26, 27 and 28.
Argued Oct. 18 and 19, 1961.
Decided Dec. 11, 1961.
Jack Greenberg, New York City, for the petitioners.
John F. Ward, Jr., Baton Rouge, La., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
These cases come to us from the Supreme Court of Louisiana and draw in question the constitutionality of the petitioners' convictions in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, for the crime of disturbing the peace. The petitioners1 were brought to trial and convicted on informations charging them with violating Title 14, Article 103(7), of the Louisiana Criminal Code, 1942, LSA—R.S. 14:103(7), in that 'they refused to move from a cafe counter seat * * * after having been ordered to do so by the agent (of the establishment); said conduct being in such manner as to unreasonably and foreseeably disturb the public * * *.' In accordance with state procedure, petitioners sought post-conviction review in the Supreme Court of Louisiana through writs of certiorari, mandamus and prohibition. They contended that the State had presented no evidence to support the findings of statutory violation, and that their convictions were invalid on other constitutional grounds, both state and federal. Relief was denied. Federal questions were properly raised and preserved throughout the proceedings, and timely petitions for certiorari filed in this Court were granted. 365 U.S. 840, 81 S.Ct. 801, 5 L.Ed.2d 801. The United States Government appeared as amicus curiae urging, on various grounds, that the convictions be reversed. An amicus brief also urging reversal was filed by the Committee on the Bill of Rights of the Association of the Bar of the City of New York.
2
In our view of these cases and for our disposition of them, the slight variance in the facts of the three cases is immaterial. Although the alleged offenses did not occur on the same day or in the same establishment, the petitioners were all arrested by the same officers, charged with commission of the same acts, represented by the same counsel, tried and convicted by the same judge, and given identical sentences. Because of this factual similarity and the identical nature of the problems involved in granting certiorari, we ordered the cases consolidated for argument and now deem it sufficient to file one opinion. In addition, as the facts are simple, we think it sufficient to recite but one of the cases in detail, noting whatever slight variations exist in the others.
3
In No. 28, Hoston et al. v. Louisiana, Jannette Hoston, a student at Southern University, and six of her colleagues took seats at a lunch counter in Kress' Department Store in Baton Rouge, Louisiana, on March 29, 1960.2 In Kress', as in Sitman's Drug Store in No. 26 where Negroes are considered 'very good customers,' a segregation policy is maintained only with regard to the service of food.3 Hence, although both stores solicit business from white and Negro patrons, and the latter as well as the former may make purchases in the general merchandise sections without discrimination,4 the stores do not provide integrated service at their lunch counters.
4
The manager at Kress' store, who was also seated at the lunch counter, told the waitress to advise the students that they could be served at the counter across the aisle, which she did. The petitioners made no response and remained quietly in their seats. After the manager had finished his lunch, he telephoned the police and told them that '(some Negroes) were seated at the counter reserved for whites.' The police arrived at the store and ordered the students to leave. The arresting officer testified that the petitioners did and said nothing except that one of them stated that she would like a glass of iced tea, but that he believed they were disturbing the peace 'by sitting there.' When none of the petitioners showed signs of leaving their seats, they were placed under arrest and taken to the police station. They were then charged with violating Title 14, Article 103(7), of the Louisiana Criminal Code, a section of the Louisiana disturbance of the peace statute.
5
Before trial, the petitioners moved for a bill of particulars as to the details of their allegedly disruptive behavior and to quash the informations for failure to state any unlawful acts of which they could be constitutionally convicted. The motions were denied, and the petitioners applied to the Supreme Court of Louisiana for writs of certiorari, prohibition and mandamus to review the rulings. The Supreme Court denied the writs on the ground that an adequate remedy was available through resort to its supervisory jurisdiction in the event of a conviction. The petitioners were then tried and convicted,5 and sentenced to imprisonment for four months, three months of which would be suspended upon the payment of a fine of $100. Subsequent to their convictions, the Supreme Court, in denying relief on appeal, issued the following oral opinion in each case.
6
'Writs refused.
7
'This court is without jurisdiction to review facts in criminal cases. See Art. 7, Sec. 10, La. Constitution of 1921 (LSA).
8
'The rulings of the district judge on matters of law are not erroneous. See Town of Ponchatoula v. Bates, 173 La., 824, 138 So., 851.'6
9
Before this Court, petitioners and the amici have presented a number of questions claiming deprivation of rights guaranteed to petitioners by the First and Fourteenth Amendments to the United States Constitution.7 The petitioners contend:
10
(a) The decision below affirms a criminal conviction based upon no evidence of guilt and, therefore, deprives them of due process of law as defined in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654.
11
(b) The petitioners were convicted of a crime under the provisions of a state statute which, as applied to their acts, is so vague, indefinite and uncertain as to offend the Due Process Clause of the Fourteenth Amendment.
12
(c) The decisions below conflict with the Fourteenth Amendment's guarantee of freedom of expression.
13
(d) The decision below conflicts with prior decisions of this Court which condemn racially discriminatory administration of State criminal laws in contravention of the Equal Protection Clause of the Fourteenth Amendment.
14
With regard to argument (d), the petitioners and the New York Committee on the Bill of Rights contend that the participation of the police and the judiciary to enforce a state custom of segregation resulted in the use of 'state action' and was therefore plainly violative of the Fourteenth Amendment. The petitioners also urge that even if these cases contain a relevant component of 'private action,' that action is substantially infected with state power and thereby remains state action for purposes of the Fourteenth Amendment.8
15
In the view we take of the cases we find it unnecessary to reach the broader constitutional questions presented, and in accordance with our practice not to formulate a rule of constitutional law broader than is required by the precise facts presented in the record, for the reasons hereinafter stated, we hold that the convictions in these cases are so totally devoid of evidentiary support as to render them unconstitutional under the Due Process Clause of the Fourteenth Amendment.9 As in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, our inquiry does not turn on a question of sufficiency of evidence to support a conviction, but on whether these convictions rest upon any evidence which would support a finding that the petitioners' acts caused a disturbance of the peace. In addition, we cannot be concerned with whether the evidence proves the commission of some other crime, for it is as much a denial of due process to send an accused to prison following conviction for a charge that was never made as it is to convict him upon a charge for which there is no evidence to support that conviction.10
16
The respondent, in both its brief and its argument to this Court, implied that the evidence proves the elements of a criminal trespass. In oral argument it contended that the real question here 'is whether or not a private property owner and proprietor of a private establishment has the right to serve only those whom he chooses and to refuse to serve those whom he desires not to serve for whatever reason he may determine.'11 That this is not a question presented by the records in these cases seems too apparent for debate. Even assuming it were the question, however, which it clearly is not, these convictions could not stand for the reason stated in Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644.12
17
Under our view of these cases, our task is to determine whether there is any evidence in the records to show that the petitioners, by their actions at the lunch counters in the business establishments involved, violated Title 14, Article 103 (7), of the Louisiana Criminal Code. At the time of petitioners' acts, Article 103 provided:
18
'Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
19
'(1) Engaging in a fistic encounter; or
20
'(2) Using of any unnecessarily loud, offensive, or insulting language; or
21
'(3) Appearing in an intoxicated condition; or
22
'(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or
23
'(5) Holding of an unlawful assembly; or
24
'(6) Interruption of any lawful assembly of people; or
25
'(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public.'
I.
26
Our initial inquiry is necessarily to determine the type of conduct proscribed by this statute and the elements of guilt which the evidence must prove to support a criminal conviction thereunder. First, it is evident from a reading of the statute that the accused must conduct himself in a manner that would 'foreseeably disturb or alarm the public.' In addition, when a person is charged with a violation of Paragraph 7, an earlier version of which was aptly described by the Supreme Court of Louisiana as 'the general portion of the statute which does not define the 'conduct or acts' the members of the Legislature had in mind' (State v. Sanford, 203 La. 961, 967, 14 So.2d 778, 780),13 it would also seem apparent from the words of the statute that the acts, whatever they might be, must be done 'in such a manner as to (actually) unreasonably disturb or alarm the public.' However, because we find the records barren of any evidence that would support a finding that the petitioners' conduct would even 'foreseeably' have disturbed the public, we need not consider whether the statute also requires the acts to be done in a manner as actually to disturb the peace.
27
We of course are bound by a State's interpretation of its own statute and will not substitute our judgment for that of the State's when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court. Hence, we must look to Louisiana for guidance in the meaning of the phrase 'foreseeably disturb or alarm the public' in order to determine the type of conduct proscribed by LSA—R.S. 14:103(7).
28
The Supreme Court of Louisiana has had occasion in the past, in interpreting the predecessor of Article 103,14 to give content to these words, and it is evident from the court's prior treatment of them that they were not intended to embrace peaceful conduct. On the contrary, it is plain that under the court's application of the statute these words encompass only conduct which is violent or boisterous in itself, or which is provocative in the sense that it induces a foreseeable physical disturbance.15 In State v. Sanford, 203 La. 961, 14 So.2d 778, the evidence showed that thirty Jehovah's Witnesses approached a Louisiana town for the purpose of distributing religious tracts and persuading the public to make contributions to their cause. The Witnesses were warned by the mayor and police officers that 'their presence and activities would cause trouble among the population and asked them to stay away from the town * * *.' 203 La., at 964, 14 So.2d, at 779. The Witnesses failed to yield to the warning and proceeded on their mission. The trial court found that the acts of the Witnesses in entering the town and stopping passersby in the crowded street 'might or would tend to incite riotous and disorderly conduct.' 203 La., at 965, 14 So.2d, at 779. The Supreme Court of Louisiana set aside convictions for breach of the peace, holding that the defendants did not commit any unlawful act or pursue any disorderly course of conduct which would tend to disturb the peace, thus, in effect, that peaceful conduct, even though conceivably offensive to another class of the public, is not conduct which may be proscribed by Louisiana's disturbance of the peace statute without evidence that the actor conducted himself in some outwardly unruly manner.
29
The conclusion of the highest Louisiana court that the breach of the peace statute does not reach peaceful and orderly conduct is substantiated by the conclusion drawn from reading the statute as a whole. The catch-all provision under which the petitioners were tried and convicted follows an enumeration of six specific offenses, each of which describes overtly tumultuous or disruptive behavior. It would therefore normally be interpreted in the light of the preceding sections as an effort to cover other forms of violence or loud and boisterous conduct not already listed.16 We do not mean to imply that an ejusdem generis reading of the statute is constitutionally compelled to the exclusion of other reasonable interpretations,17 but we do note that here such a reading is consistent with the Louisiana Supreme Court's application in Sanford.18
30
Further evidence that Article 103(7) was not designed to encompass the petitioners' conduct in these cases has been supplied by the Louisiana Legislature. Shortly after the events for which the petitioners were arrested took place, the legislature amended its disturbance of the peace statute in an obvious attempt to reach the type of activity involved in these cases.19 The contrast between the language of the present statute and the one under which the petitioners were convicted confirms the interpretation given the general terms of the latter by the Supreme Court in State v. Sanford and the natural meaning of the words used in Article 103.
31
We are aware that the Louisiana courts have the final authority to interpret and, where they see fit, to reinterpret that State's legislation. However, we have seen no indication that the Louisiana Supreme Court has changed its Sanford interpretation of LSA—R.S. 14:103(7), and we will not infer that an inferior Louisiana court intended to overrule a long-standing and reasonable interpretation of a state statute by that State's highest court. Our reluctance so to infer is supported, moreover, by the fact that State v. Sanford was argued by the petitioners to both the trial court and the Supreme Court, and that neither court mentioned in its opinion that Sanford was no longer to be the law in Louisiana.
32
We think that the above discussion would given ample support to a conclusion that Louisiana law requires a finding of outwardly boisterous or unruly conduct in order to charge a defendant with 'foreseeably' disturbing or alarming the public. However, because this case comes to us from a state court and necessitates a delicate involvement in federal-state relations, we are willing to assume with the respondent that the Louisiana courts might construe the statute more broadly to encompass the traditional common-law concept of disturbing the peace. Thus construed, it might permit the police to prevent an imminent public commotion even though caused by peaceful and orderly conduct on the part of the accused. Cf. Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213. We therefore treat these cases as though evidence of such imminent danger, as well as evidence of a defendant's active conduct which is outwardly provocative, could support a finding that the acts might 'foreseeably disturb or alarm the public' under the Louisiana statute.
II.
33
Having determined what evidence is necessary to support a finding of disturbing the peace under Louisiana law, the ultimate question, as in Thompson v. City of Louisville, supra, is whether the records in these cases contain any such evidence. With appropriate notations to the slight differences in testimony in the other two cases, we again turn to the record in No. 28.20 The manager of the department store in which the lunch counter was located testified that after the students had taken their seats at the 'white lunch counter' where he was also occupying a seat, he advised the waitress on duty to offer the petitioners service at the counter across the aisle which served Negroes. The petitioners, however, after being 'advised that they would be served at the other counter,' remained in their seats, and the manager continued eating his lunch at the same counter. In No. 26, where there were no facilities to serve colored persons, the petitioners were merely told that they couldn't be served, but were never even asked to move. In No. 27, a waitress testified that the petitioners were merely told that they would have to go 'to the other side to be served.' The petitioners not only made no speeches, they did not even speak to anyone except to order food; they carried no placards, and did nothing, beyond their mere presence at the lunch counter, to attract attention to themselves or to others. In none of the cases was there any testimony that the petitioners were told that their mere presence was causing, or was likely to cause, a disturbance of the peace, nor that the petitioners were ever asked to leave the counters or the establishments by anyone connected with the stores.
34
The manager in No. 28 testified that after finishing his meal he went to the telephone and called the police department, advising them that Negroes were in his store sitting at the lunch counter reserved for whites. This is the only case in which 'the owner or his agent' notified the police of the petitioners' presence at the lunch counter, and even here the manager gave no indication to the officers that he feared any disturbance or that he had received any complaint concerning the petitioners' presence. In No. 27, a waitress testified that a bus driver sitting in the restaurant notified the police that 'there were several colored people sitting at the lunch counter.'21 In No. 26, the arresting officers were not summoned to the drugstore by anyone even remotely connected with Sitman's but, rather, by a call from an officer on his 'beat' who had observed the petitioners sitting quietly at the lunch counter.
35
Although the manager of Kress' Department Store testified that the only conduct which he considered disruptive was the petitioners' mere presence at the counter, he did state that he called the police because he 'feared that some disturbance might occur.'22 However, his fear is completely unsubstantiated by the record. The manager continued eating his lunch in an apparently leisurely manner at the same counter at which the petitioners were sitting before calling the police. Moreover, not only did he fail to give the petitioners any warning of his alleged 'fear,'23 but he specifically testified to the fact that the petitioners were never asked to move or to leave the store. Nor did the witness elaborate on the basis of his fear except to state that 'it isn't customary for the two races to sit together and eat together.'24 In addition, there is no evidence that this alleged fear was ever communicated to the arresting officers, either at the time the manager made the initial call to police headquarters or when the police arrived at the store. Under these circumstances, the manager's general statement gives no support for the convictions within the meaning of Thompson v. City of Louisville, supra.
36
Subsequent to the manager's notification, the police arrived at the store and, without consulting the manager or anyone else on the premises, went directly to confront the petitioners. An officer asked the petitioners to leave the counter because 'they were disturbing the peace and violating the law by sitting there.' One of the students stated that she wished to get a glass of iced tea, but she and her friends were told, again by the police, that they were disturbing the peace by sitting at a counter reserved for whites and that they would have to leave. When the petitioners continued to occupy the seats, they were arrested, as the officer testified, for disturbing the peace '(b)y sitting there' 'because that place was reserved for white people.' The same officer testified that the petitioners had done nothing other than take seats at that particular lunch counter which he considered to be a breach of the peace.25
37
The respondent discusses at length the history of race relations and the high degree of racial segregation which exists throughout the South. Although there is no reference to such facts in the records, the respondent argues that the trial court took judicial notice of the general situation, as he may do under Louisiana law,26 and that it therefore became apparent to the court that the petitioners' presence at the lunch counters might cause a disturbance which it was the duty of the police to prevent. There is nothing in the records to indicate that the trial judge did in fact take judicial notice of anything. To extend the doctrine of judicial notice to the length pressed by the respondent would require us to allow the prosecution to do through argument to this Court what it is required by due process to do at the trial, and would be 'to turn the doctrine into a pretext for dispensing with a trial.' Ohio Bell Telephone Co. v. Public Utilities Comm., 301 U.S. 292, 302, 57 S.Ct. 724, 729, 81 L.Ed. 1093. Furthermore, unless an accused is informed at the trial of the facts of which the court is taking judicial notice, not only does he not know upon what evidence he is being convicted, but, in addition, he is deprived of any opportunity to challenge the deductions drawn from such notice or to dispute the notoriety or truth of the facts allegedly relied upon. Moreover, there is no way by which an appellate court may review the facts and law of a case and intelligently decide whether the findings of the lower court are supported by the evidence where that evidence is unknown. Such an assumption would be a denial of due process. Ohio Bell, supra.
38
Thus, having shown that these records contain no evidence to support a finding that petitioners disturbed the peace, either by outwardly boisterous conduct or by passive conduct likely to cause a public disturbance, we hold that these convictions violated petitioners' rights to due process of law guaranteed them by the Fourteenth Amendment to the United States Constitution. The undisputed evidence shows that the police who arrested the petitioners were left with nothing to support their actions except their own opinions that it was a breach of the peace for the petitioners to sit peacefully in a place where custom decreed they should not sit.27 Such activity, in the circumstances of these cases, is not evidence of any crime and cannot be so considered either by the police or by the courts.
39
The judgments are reversed.
40
Mr. Justice FRANKFURTER, concurring in the judgment.
41
Whether state statutes are to be construed one way or another is a question of state law, final decision of which rests, of course, with the courts of the State. When as here those courts have not spelled out the meaning of a statute, this Court must extrapolate its allowable meaning and attribute that to the highest court of the State. We must do so in a manner that affords the widest latitude to state legislative power consistent with the United States Constitution.
42
Since LSA—R.S. 14:103 is concededly a statute aimed at 'disturbing the peace,' we begin with the breadth of meaning derived from that phrase in Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851, 852 (1931). To be sure, that amounted to an abstract discussion and in the limited circumstances considered by the Louisiana Supreme Court in State v. Sanford, 203 La. 961, 14 So.2d 778 (1943), the allowable scope of the statutory prohibition was not fully explored. But construction of the statute to prohibit non-violent, non-religious behavior in a private shop when that behavior has a tendency to disturb or alarm the public is fairly derivable from a reading of the Sanford opinion.
43
The action of the Louisiana Legislature in amending its statutes after the events now under review took place is not a safe or even relevant guide to the scope of the prior statute. Legislatures not uncommonly seek to make prior law more explicit or reiterate a prohibition by more emphatic concreteness. The rule of evidence that excludes proof of post-injury repairs offers a useful analogy here. See II Wigmore, Evidence, § 283 (Third ed. 1940). It is not our province to limit the meaning of a state statute beyond its confinement by reasonably read statecourt rulings.
44
Assuming for present purposes the constitutionality of a statute prohibiting non-violent activity that tends to provoke public alarm or disturbance, such a tendency, as a crucial element of a criminal offense, must be established by evidence disclosed in the record to sustain a conviction. A judge's private knowledge, or even 'knowledge by notoriety,' to use Dean Wigmore's phrase, IX Evidence, § 2569 (Third ed. 1940), not presented as part of the prosecution's case capable of being met by a defendant, is not an adequate basis, as a matter of due process, to establish an essential element of what is punished as crime. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654.
45
It may be unnecessary to require formal proof, even as to an issue crucial in determining guilt in a criminal prosecution, of what is incontestably obvious. But some showing cannot be dispensed with when an inference is at all doubtful. And it begs the whole question on the answer to which the validity of these convictions turns to assume that the 'public' tended to be alarmed by the conduct of the petitioners here disclosed. See Devlin, L.J., in Dingle v. Associated Newspapers, (1961) 2 Q.B. 162, 198. Conviction under this Louisiana statute cannot be sustained by reliance merely upon likely consequences in the generality of cases. Since particular persons are being sent to jail for conduct allegedly having a particular effect on a particular occasion under particular circumstances, it becomes necessary to appraise that conduct and effect by the particularity of evidence adduced.
46
The records in these cases, whatever variance in unimportant details they may show, contain no evidence of disturbance or alarm in the behavior of the cafe employees or customers or even passers-by, the relevant 'public' fairly in contemplation of these charges. What they do show was aptly summarized both in the testimony of the arresting police and in the recitation of the trial judge as the 'mere presence' of the petitioners.
47
Silent persistence in sitting after service is refused could no doubt conceivably exacerbate feelings to the boiling point. It is not fanciful speculation, however, that a proprietor who invites trade in most parts of his establishment and restricts it in another may change his policy when non-violently challenged.* With records as barren as these of evidence from which a tendency to disturb or alarm the public immediately involved can be drawn, there is nothing before us on which to sustain such an inference from what may be hypothetically lodged in the unopened bosom of the local court.
48
Since the 'mere presence' that these records prove has, in any event, not been made a crime by the Louisiana statute under which these petitioners were charged, their convictions must be reversed.
49
Mr. Justice DOUGLAS, concurring.
50
If these cases had arisen in the Pacific Northwest—the area I know best—I could agree with the opinion of the Court. For while many communities north and south, east and west, at times have racial problems, those areas which have never known segregation would not be inflamed or aroused by the presence of a member of a minority race in a restaurant. But in Louisiana racial problems have agitated the people since the days of slavery. The landmark case of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1144, 41 L.Ed. 256—the decision that announced in 1896 the now-repudiated doctrine of 'separate but equal' facilities for whites and blacks—came from Louisiana which had enacted in 1890 a statute requiring segregation of the races on railroad trains. In the environment of a segregated community I can understand how the mere presence of a Negro at a white lunch counter might inflame some people as much as fisticuffs would in other places. For the reasons stated by Mr. Justice HARLAN in these cases, I read the Louisiana opinions as meaning that this law includes 'peaceful conduct of a kind that foreseeably may lead to public disturbance'—a kind of 'generally known condition' that may be 'judicially noticed' even in a criminal case.
51
This does not mean that the police were justified in making these arrests. For the police are supposed to be on the side of the Constitution, not on the side of discrimination. Yet if all constitutional questions are to be put aside and the problem treated merely in terms of disturbing the peace, I would have difficulty in reversing these judgments. I think, however, the constitutional questions must be reached and that they make reversal necessary.
52
Restaurants, whether in a drugstore, department store, or bus terminal, are a part of the public life of most of our communities. Though they are private enterprises, they are public facilities in which the States may not enforce a policy of racial segregation.
I.
53
It is, of course, state action that is prohibited by the Fourteenth Amendment, not the actions of individuals. So far as the Fourteenth Amendment is concerned, individuals can be as prejudiced and intolerant as they like. They may as a consequence subject themselves to suits for assault, battery, or trespass. But those actions have no footing in the Federal Constitution. The line of for-bidden conduct marked by the Equal Protection Clause of the Fourteenth Amendment is crossed only when a State makes prejudice or intolerance its policy and enforces it, as held in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. Mr. Justice Bradley, speaking for the Court, said: '* * * civil rights, such as are guaranteed by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings.' Id., at 17, 3 S.Ct. at 25. (Italics added.)
54
State policy violative of the Fourteenth Amendment may be expressed in Legislative enactments that permit or require segregation of the races in public places or public facilities (Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873) or in residential areas. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149.
55
It may be expressed through executive action, as where the police or other law enforcement officials act pursuant to, or under color of, state law. See, e.g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.
56
It may be expressed through the administrative action of state agencies in leasing public facilities. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45.
57
It may result from judicial action, as where members of a race are systematically excluded from juries (Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866), or where restrictive covenants based on race are enforced by the judiciary (Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586), or where a state court fines or imprisons a person for asserting his federal right to use the facilities of an interstate bus terminal, Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206.
58
As noted, Mr. Justice Bradley suggested in the Civil Rights Cases, supra, that state policy may be as effectively expressed in customs as informal legislative, executive, or judicial action.
59
It was indeed held in Baldwin v. Morgan, 5 Cir., 287 F.2d 750, 756, that the 'custom, practice and usage' of a city and its police in arresting four Negroes for using 'white' waiting rooms was state action in violation of the Fourteenth Amendment, even though no ordinance was promulgated and no order issued. In the instant cases such an inference can be drawn from the totality of circumstances permeating the environment where the arrests were made—not an isolated arrest but three arrests; not arrests on account of fisticuffs but arrests because the defendants were Negroes seeking restaurant service at counters and tables reserved for 'whites.'
60
There is a deep-seated pattern of segregation of the races in Louisiana,1 going back at least to Plessy v. Ferguson, supra. It was restated in 1960—the year in which petitioners were arrested and charged for sitting in white restaurants—by Act No. 630, which in its preamble states:
61
'WHEREAS, Louisiana has always maintained a policy of segregation of the races, and 'WHEREAS, it is the intention of the citizens of this sovereign state that such a policy be continued.' La.Acts 1960, p. 1200.
62
Louisiana requires that all circuses, shows, and tent exhibitions to which the public is invited have one entrance for whites and one for Negroes. LSA—R.S. c. 4, § 5. No dancing, social functions, entertainment, athletic training, games, sports, contests 'and other such activities involving personal and social contacts' may be open to both races. LSA—R.S. c. 4, § 451. Any public entertainment or athletic contest must provide separate seating arrangements and separate sanitary drinking water and 'any other facilities' for the two races. LSA—R.S. c. 4, § 452. Marriage between members of the two races is banned. LSA—R.S. c. 14, § 79. Segregation by race is required in prisons. LSA—R.S. c. 15, § 752. The blind must be segregated. LSA—R.S.. c. 17, § 10. Teachers in public schools are barred from advocating desegregation of the races in the public school system. LSA—R.S. c. 17, §§ 443, 462. So are other state employees. LSA—R.S. c. 17, § 523. Segregation on trains is required. LSA—R.S. c. 45, §§ 528 532. Common carriers of passengers must provide separate waiting rooms and reception room facilities for the two races (LSA—R.S. c. 45, § 1301) and separate toilets and separate facilities for drinking water as well. LSA—R.S. c. 45, § 1303. Employers must provide separate sanitary facilities for the two races. LSA—R.S. 23:971. Employers must also provide separate eating places in separate rooms and separate eating and drinking utensils for members of the two races. LSA—R.S. c. 23, § 972. Persons of one race may not establish their residence in a community of another race without approval of the majority of the other race. LSA—R.S. c. 33, § 5066. Court dockets must reveal the race of the parties in divorce actions. LSA—R.S. c. 13, § 917. And all public parks, recreation centers, playgrounds, community centers and 'other such facilities at which swimming, dancing, golfing, skating or other recreational activities are conducted' must be segregated. LSA—R.S. c. 33, § 4558.1.
63
Though there may have been no state law or municipal ordinance that in terms required segregation of the races in restaurants, it is plain that the proprietors in the instant cases were segregating blacks from whites pursuant to Louisiana's custom. Segregation is basic to the structure of Louisiana as a community; the custom that maintains it is at least as powerful as any law. If these proprietors also choose segregation, their preference does not make the action 'private,' rather than 'state,' action. If it did, a minuscule of private prejudice would convert state into private action. Moreover, where the segregation policy is the policy of a State, it matters not that the agency to enforce it is a private enterprise. Baldwin v. Morgan, supra; Boman v. Birmingham Transit Co., 5 Cir., 280 F.2d 531.
II.
64
It is my view that a State may not constitutionally enforce a policy of segregation in restaurant facilities. Some of the argument assumed that restaurants are 'private' property in the sense that one's home is 'private' property. They are, of course, 'private' property for many purposes of the Constitution. Yet so are street railways, power plants, warehouses, and other types of enterprises which have long been held to be affected with a public interest. Where constitutional rights are involved, the proprietary interests of individuals must give way. Towns, though wholly owned by private interests, perform municipal functions and are held to the same constitutional requirements as ordinary municipalities. Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265. State regulation of private enterprise falls when it discriminates against interstate commerce. Port Richmond Ferry v. Board of Chosen Freeholders of Hudson County, 234 U.S. 317, 34 S.Ct. 821, 58 L.Ed. 1330. State regulation of private enterprise that results in impairment of other constitutional rights should stand on no firmer footing, at least in the area where facilities of a public nature are involved.
65
Long before Chief Justice Waite wrote the opinion in Munn v. State of Illinois, 94 U.S. 113, 24 L.Ed. 77, holding that the prices charged by grain warehouses could be regulated by the State, a long list of businesses had been held to be 'affected with a public interest.' Among these were ferries, common carriers, hackmen, bakers, millers, wharfingers, and innkeepers. Id., at 125. The test used in Munn v. State of Illinois was stated as follows: 'Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.' Id., at 126. In reply to the charge that price regulation deprived the warehousemen of property, Chief Justice Waite stated, 'There is no attempt to compel these owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner.' Id., at 133.
66
There was a long span between Munn v. Illinois and Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, which upheld the power of a State to fix the price of milk. A business may have a 'public interest' even though it is not a 'public utility' in the accepted sense, even though it enjoys no franchise from the State, and even though it enjoys no monopoly. Id., at 534, 54 S.Ct. at 514. The examples cover a wide range from price control to prohibition of certain types of business. Id., at 525—529, 54 S.Ct. at 510—512. Various systems or devices designed by States or municipalities to protect the wholesomeness of food in the interests of health are deep-seated as any exercise of the police power. Adams v. City of Milwaukee, 228 U.S. 572, 33 S.Ct. 610, 57 L.Ed. 971.
67
Years ago Lord Chief Justice Hale stated in De Portibus Maris, 1 Harg. Law Tracts 78, '* * * if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected with a public interest.' Those who run a retail establishment under permit from a municipality operate, in my view, a public facility in which there can be no more discrimination based on race than is constitutionally permissible in the more customary types of public facility.
68
Under Louisiana law, restaurants are a form of private property affected with a public interest. Local boards of health are given broad powers. LSA—R.S. c. 40, § 35; LSA—R.S. c. 33, § 621. The City of Baton Rouge in its City Code requires all restaurants to have a permit. Tit. 6, c. 7, § 601. The Director of Public Health is given broad powers of inspection and permits issued can be suspended. Id. § 603. Permits are not transferable. Id. § 606. One who operates without a permit commits a separate offense each day a violation occurs. Id. § 604. Moreover, detailed provisions are made concerning the equipment that restaurants must have, the protection of ready-to-eat foods and drink, and the storage of food. Id. § 609.
69
Restaurants, though a species of private property, are in the public domain. Or to paraphrase the opinion in Nebbia v. New York, supra, restaurants in Louisiana have a 'public consequence' and 'affect the community at large.' 291 U.S. 502, 533, 54 S.Ct. 505, 514, 78 L.Ed. 940.
70
While the concept of a business 'affected with a public interest' normally is used as a measure of a State's police power over it, it also has other consequences. A State may not require segregation of the races in conventional public utilities any more than it can segregate them in ordinary public facilities.2 As stated by the court in Boman v. Birmingham Transit Co., 5 Cir., 280 F.2d 531, 535, a public utility 'is doing something the state deems useful for the public necessity or convenience.' It was this idea that the first Mr. Justice Harlan, dissenting in Plessy v. Ferguson, supra, advanced. Though a common carrier is private enterprise, 'its work,' he maintained, is public. Id., at 554, 16 S.Ct. at 1144. And there can be no difference, in my view, between one kind of business that is regulated in the public interest and another kind so far as the problem of racial segregation is concerned. I do not believe that a State that licenses a business can license it to serve only whites or only blacks or only yellows or only browns. Race is an impermissible classification when it comes to parks or other municipal facilities by reason of the Equal Protection Clause of the Fourteenth Amendment. By the same token, I do not see how a State can constitutionally exercise its licensing power over business either in terms or in effect to segregate the races in the licensed premises. The authority to license a business for public use is derived from the public. Negroes are as much a part of that public as are whites. A municipality granting a license to operate a business for the public represents Negroes as well as all other races who live there. A license to establish a restaurant is a license to establish a public facility and necessarily imports, in law, equality of use for all members of the public. I see no way whereby licenses issued by a State to serve the public can be distinguished from leases of public facilities (Burton v. Wilmington Parking Authority, supra) for that end.
71
One can close the doors of his home to anyone he desires. But one who operates an enterprise under a license from the government enjoys a privilege that derives from the people. Whether retail stores, not licensed by the municipality, stand on a different footing is not presented here. But the necessity of a license shows that the public has rights in respect to those premises. The business is not a matter of mere private concern. Those who license enterprises for public use should not have under our Constitution the power to license it for the use of only one race. For there is the overriding constitutional requirement that all state power be exercised so as not to deny equal protection to any group. As the first Mr. Justice Harlan stated in dissent in Plessy v. Ferguson, supra, at 559, 16 S.Ct. at 1146, '* * * in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind * * *.'
72
Mr. Justice HARLAN, concurring in the judgment.
73
I agree that these convictions are unconstitutional, but not for the reasons given by the Court. Relying on Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, the Court strikes down the convictions on the ground that there is no evidence whatever to support them. In my opinion the Thompson doctrine does not fit these cases. However, I believe the convictions are vulnerable under the Fourteenth Amendment on other grounds: (1) the kind of conduct revealed in Garner, No. 26, and in Hoston, No. 28, could not be punished under a generalized breach of the peace provision, such as Art. 103(7), La.Crim. Code;1 (2) Art. 103(7) as applied in Briscoe, No. 27 (as well as in the Garner and Hoston cases) is unconstitutionally vague and uncertain.
74
The Court's reversal for lack of evidence rests on two different views of Art. 103(7). First, it is said that the statute, as construed by the Louisiana courts, reaches at most only 'violent,' 'boisterous,' or 'outwardly provocative' conduct that may foreseeably induce a public disturbance. On this view, these cases are found evidentially wanting because the petitioners' conduct, being entirely peaceful, was not of the character proscribed by the statute so construed. Alternatively, it is recognized that the statute is susceptible of a construction that would embrace as well other kinds of conduct having the above effect. On that view, the convictions are also found evidentially deficient, in that petitioners' conduct, so it is said, could not property be taken as having any tendency to cause a public disturbance. In my opinion, the first of these holdings cannot withstand analysis with appropriate regard for the limitations upon our powers of review over state criminal cases; the second holding rests on untenable postulates as to the law of evidence.
I.
75
Turning to the first holding, it goes without saying that we are not at liberty to determine for ourselves the scope of this Louisiana statute. That was a function belonging exclusively to the state courts, and their interpretation is binding on us. E.g., Appleyard v. State of Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161; Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270; Williams v. Oklahoma, 358 U.S. 576, 583, 79 S.Ct. 421, 425, 3 L.Ed.2d 516. For me, the Court's view that the statute covers only nonpeaceful conduct is unacceptable, since I believe that the Louisiana Supreme Court decided the opposite in these very cases. I think the State Supreme Court's refusal to review these convictions, taken in light of its assertion that the 'rulings of the district judge on matters of law are not erroneous,' must be accepted as an authoritative and binding state determination that the petitioners' activities, as revealed in these records, did violate the statute; in other words that, contrary to what this Court now says in Part I of its opinion, the enactment does cover peaceful conduct of a kind that foreseeably may lead to public disturbance.2
76
This Court's view of the statute rests primarily, if not entirely, on an earlier Louisiana case, State v. Sanford, 203 La. 961, 14 So.2d 778, involving a different, but comparable, breach of the peace statute. That case is regarded as establishing that breaches of the peace under Louisiana law are confined to nonpeaceful conduct. While I do not find the Sanford case as 'plan' as the Court does (infra, 368 U.S., pp. 191—192, 82 S.Ct., pp. 266—267), that earlier holding cannot in any event be deemed controlling on the significance to be attributed to the action of the State Supreme Court in these cases. There can be no doubt that Louisiana had to follow the principles of Sanford only to the extent that it felt bound by stare decisis. A departure from precedent may have been wrong, unwise, or even unjust, but it was not unconstitutional. Patterson v. State of Colorado, 205 U.S. 454, 461, 27 S.Ct. 556, 557, 51 L.Ed. 879.3 See also Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 680, 50 S.Ct. 451, 454, 74 L.Ed. 1107, and cases there cited; cf. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360.
77
More basically, established principles of constitutional adjudication require us to consider that the Louisiana Supreme Court's refusal to review these cases signifies a holding that the breach of the peace statute which controls these cases does embrace the conduct of the petitioners, peaceful though it was.
78
These state judgments come to us armored with a presumption that they are not founded 'otherwise than is required by the fundamental law of the land,' Ex parte Royall, 117 U.S. 241, 252, 6 S.Ct. 734, 740, 29 L.Ed. 868 (see also Darr v. Burford, 339 U.S. 200, 205, 70 S.Ct. 587, 590, 94 L.Ed. 761), comparable to the presumption which has always attached to state legislative enactments. See, e.g., Butler v. Pennsylvania, 10 How, 402, 415, 13 L.Ed. 472. That presumption should render impermissible an interpretation of these judgments as resting on the view that the relevant breach of the peace statute reaches only unruly behavior. For, on the Court's premise that there is no evidence of that kind of behavior, such an interpretation in effect attributes to the Louisiana Supreme Court a deliberately unconstitutional decision, under principles established by Thompson v. City of Louisville, supra, which had already been decided at the time these cases came before the Louisiana courts.
79
Moreover, the kind of speculation in which the Court has indulged as to the meaning of the Louisiana statute is surely out of keeping with the principle that federal courts should abstain from constitutional decision involving doubtful state law questions until a clarifying adjudication on them has first been obtained from the state courts. See Railroad Comm. of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971; Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. Cf. Glenn v. Field Packing Co., 290 U.S. 177, 54 S.Ct. 138, 78 L.Ed. 252; Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228—229, 77 S.Ct. 287, 292, 1 L.Ed.2d 267; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058. If there be doubt as to how the statute was construed in this respect, the cases should be returned to the Louisiana Supreme Court for clarification of its judgments. See Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789.
80
Our recent decision in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, cannot well be taken as justification for considering the judgments under review as other than a holding by Louisiana's highest court that breach of the peace under then existing state law may include conduct that in itself is peaceful. In Thompson, the petitioner was convicted of two offenses defined by ordinances of the City of Louisville. One of these ordinances, prohibiting loitering, expressly enumerated three elements of the offense. The prosecution introduced no evidence to establish any of these definitely prescribed components, which were not suggested to have, by virtue of state judicial interpretation, any other than their plain meaning. We held that 'Under the words of the ordinance itself,' there was no evidence to support the conviction.
81
The other offense of which the petitioner in Thompson was convicted was 'disorderly conduct,' not at all defined in the ordinance. The only evidence in the record relating to conduct which might conceivably have come within the prohibited scope indicated was that the petitioner was 'argumentative' with the arresting officers. We said of this conviction (362 U.S., at 206, 80 S.Ct., at 629): 'We assume, for we are justified in assuming, that merely 'arguing' with a policeman is not, because it could not be, 'disorderly conduct' as a matter of the substantive law of Kentucky. See Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.' In other words, we held that the ordinance could not, for want of adequate notice, constitutionally be construed by the Kentucky courts to cover the activity for which the city sought to punish the petitioner.
82
Where, as was true of the disorderly conduct charge in Thompson, application of a generally drawn state statute or municipal ordinance to the conduct of a defendant would require a constitutionally impermissible construction of the enactment, we are not bound by the state court's finding that the conduct was criminal. In the cases now before us, however, the Court does not suggest that Louisiana's disturbance of the peace statute was too vague to be constitutionally applied to the conduct of the petitioners. I think we are obliged, because of the state courts' dispositions of these cases, to hold that there was presented at petitioners' trials evidence of criminal conduct under Louisiana law. Herndon v. Lowry, 301 U.S. 242, 255, 57 S.Ct. 732, 738, 81 L.Ed. 1066.
83
Thompson v. Louisville should be recognized for what it is, a case involving a situation which, I think it fair to say, was unique in the annals of the Court. The case is bound to lead us into treacherous territory, unless we apply its teaching with the utmost circumspection, and with due sense of the limitations upon our reviewing authority.
84
The Court's holding on this phase of the matter also suffers from additional infirmities. I do not think that State v. Sanford, the cornerstone of this branch of the Court's opinion, is as revealing upon the meaning of breach of the peace under Louisiana law as the Court would make it seem. In that case the Louisiana Supreme Court reversed the convictions, under the then breach of the peace statute, of four Jehovah's Witnesses who had solicited contributions and distributed pamphlets in a Louisiana town, with an opinion which cited, inter alia, Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1214 and Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1119. Reference was made to 'the provisions of the Constitution of the United States guaranteeing freedom of religion, of the press and of speech.' 203 La., at 968, 14 So.2d, at 780. The court said, most clearly, 'The application of the statute by the trial judge to the facts of this case and his construction thereof would render it unconstitutional under the above Federal authorities.' 203 La., at 970, 14 So.2d, at 780—781. In addition, the opinion noted, conviction under the statute might violate the Louisiana Constitution 'because it is well-settled that no act or conduct, however reprehensible, is a crime in Louisiana, unless it is defined and made a crime clearly and unmistakably by statute.' 203 La., at 970, 14 So.2d, at 781. In the concluding part of its opinion the Louisiana Supreme Court also said what this Court now considers to be the sole ground of its decision: 'It is our opinion that the statute is inapplicable to this case because it appears that the defendants did not commit any unlawful act or pursue an unlawful or disorderly course of conduct which would tend to disturb the peace.' 203 La., at 970, 14 So.2d, at 781.
85
Thus, a full reading of Sanford will disclose that there were at least three considerations which led to the result: (1) the likelihood that a contrary holding would violate provisions of the Federal Constitution relating to religion, speech, and press under the principles declared in then-recent decisions of this Court; (2) the possibility that the statute was too vague and unclear under the Louisiana Constitution adequately to define the bounds of the conduct being declared criminal; (3) the unfairness of convicting under a general breach of the peace statute persons engaged in such peaceable religious activity.
86
The Court now isolates this last factor from this multifaceted opinion, and, using it as an immutable measures of what Louisiana law requires, declares that the present convictions must fall because the standard so unclearly set out in Sanford has not been met. Apart from other considerations already discussed, I am not prepared to rest a constitutional decision on so insecure a foundation.
87
It is further significant that the State Supreme Court's order refusing to review the present cases does not cite State v. Sanford, but rather relies on another earlier case, Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851. The Bates decision, upholding the constitutionality of an ordinance making it a crime 'to engage in a fight or in any manner disturb the Peace,' defined disturbance of the peace as 'any act or conduct of a person which molests the inhabitants in the enjoyment of that peace and quiet to which they are entitled, or which throws into confusion things settled, or which causes excitement, unrest, disquietude, or fear among persons of ordinary, normal temperament.' 173 La., at 828, 138 So., at 852. Such a definition would of course bring within the compass of the statute even peaceful activity, so long as it threw 'into confusion things settled,' or caused disquietude among ordinary members of the community. I think it was that construction which the Louisiana Supreme Court placed upon the breach of the peace statute involved in the cases now before us.
II.
88
The alternative holding of the Court in Part II of its opinion also stands on unsolid foundations. Conceding that this breach of the peace statute 'might' be construed to cover peaceful conduct carried on 'in such a manner as would foreseeably disturb or alarm the public,' the Court holds that there was no evidence that petitioners' conduct tended to disturb or alarm those who witnessed their activity.
89
There is, however, more to these cases than what physically appears in the record. It is an undisputed fact that the 'sit-in' program, of which petitioners' demonstrations were a part, had caused considerable racial tension in various States, including Louisiana. Under Louisiana law, LSA—R.S. 15:422, Louisiana courts may take judicial notice of 'the political, social and racial conditions prevailing in this state.' State v. Bessa, 115 La. 259, 38 So. 985. This Court holds, nonetheless, that the Louisiana courts could not, consistently with the procedural guarantees of the Fourteenth Amendment, judicially notice the undisputed fact that there was racial tension in and around Baton Rouge on March 28 and 29, 1960 (the dates of these 'sitin'), without informing the parties that such notice was being taken, and without spreading the source of the information on the record.
90
Support for this constitutional proposition is found in Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 302—303, 57 S.Ct. 724, 730, 81 L.Ed. 1093. The Court there held that it was repugnant to the Fourteenth Amendment for a state agency to deprive the telephone company of property on the basis of rates set by a precise mathematical computation derived from undisclosed statistics. This was because the procedure afforded no opportunity for rebuttal with respect to the underlying data, and for possible demonstration that the figures should not be judicially noticed, since their source was unknown and the statistics were not disclosed to any reviewing court. See Morgan, Some Problems of Proof (1956), 56.
91
The situation we have here is quite different. The existence of racial tensions, of which the Louisiana courts must have taken judicial notice in order to find that petitioners' conduct alarmed or disturbed the public, was notorious throughout the community and, indeed, throughout that part of the United States. The truth of that proposition is not challenged, nor is any particular authority required to confirm it. This kind of generally known condition may be judicially noticed by trial and appellate courts without prior warning to the parties, since it does not require any foundation establishing the accuracy of a specific source of information. See Uniform Rules of Evidence, 9(2)(c); ALI, Model Code of Evidence, Rule 802(c); 1 Morgan, Basic Problems of Evidence (1954), 9—10. Cf. Mills v. Denver Tramway Corp., 155 F.2d 808 (C.A.10th Cir.). I perceive no reason why that principle should be considered as applying only in civil cases, and I am not aware of any American authority which so holds.
92
Indeed, the fact of which I think we must consider judicial notice was taken in this instance was so notorious throughout the country that far from its being unconstitutional for a court to take it into consideration, it would be quite amiss for us not to deem that the Louisiana courts did so on their own initiative. See, e.g., Uniform Rule of Evidence, 9(1); cf. Note, 12 Va.L.Rev. 154 (1925), and cases there cited. It might have been procedurally preferable had the trial judge announced to the parties that he was taking judicial notice, as is suggested in Model Code of Evidence, Rule 804. But we would be exalting the sheerest of technicalities were we to hold that a conviction is constitutionally void because of a judge's failure to declare that he has noticed a common proposition when, at no stage in the proceeding, is it suggested that the proposition may be untrue. Whether a trial judge need notify the parties of his intention to take judicial notice of 'routine matters of common knowledge which * * * (he) would notice as a matter of course' is best left to his 'reasonable discretion.' McCormick, Evidence (1954), 708. Appellate courts have always reserved the authority to notice such commonly known propositions as are needed to support the judgment of a lower court, even if no express reference has been made below. See, Comment, 42 Mich.L.Rev. 509, 512—513 (1943).
93
Moreover, in this instance, the fact that the trial court had taken judicial notice of the impact of petitioners' conduct, which indeed had obviously been engaged in for the very purpose of producing an impact on others in this field of racial relations, albeit, I shall assume, with the best of motives, could hardly have failed to cross the minds of petitioners' counsel before the trial had ended. They however neither sought to introduce countervailing evidence on that issue, nor have they undertaken at any stage of these proceedings, including that in this Court, to question the availability of judicial notice on this aspect of the State's case.
94
Were we to follow the reasoning of the majority opinion where it would logically lead, this Court would be violating due process every time it noticed a generally known fact without first calling in the parties to apprise them of its intention. Yet without any such notification this Court has many times taken judicial notice of well-known economic and social facts, e.g., Atchison, Topeka & S.F.R. Co. v. United States, 284 U.S. 248, 260, 52 S.Ct. 146, 149, 76 L.Ed. 273; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398 400, 57 S.Ct. 578, 585, 81 L.Ed. 703; Hoyt v. Florida, 368 U.S. 57, at p. 62, 82 S.Ct. 159, at p. 163, and even of the tendency of particular epithets to cause a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031.
95
It is no answer to say in these cases that while it was permissible for the Louisiana courts to take judicial notice of racial conditions generally, they could not take notice of the particular conditions on the premises involved in these prosecutions. In the absence of contrary evidence, it was certainly not constitutionally impermissible for the Louisiana courts to consider that the racial conditions in Baton Rouge and in the establishments where petitioners sat were not dissimilar to those existing throughout the State. Judicial notice of racial conditions in a State has sufficient probative value in determining what were the racial conditions at a particular location within the State to withstand constitutional attack. Reversing these convictions for want of evidence of racial tension would in effect be putting this Court into the realm of reviewing the sufficiency of the evidence to support these convictions, something which both Thompson v. City of Louisville, supra, 362 U.S., at 199, 80 S.Ct. at 624, and the Court's opinion in the present cases, ante, 368 U.S., p. 163, 82 S.Ct., p. 251, recognize is not properly within our purview.
96
In my opinion, skimpy though these records are, the convictions do not fall for want of evidence, in the constitutional sense.
III.
97
Were there no more to these cases, I should have to vote to affirm. But in light of principles established by Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1214, and consistently since recognized, I think the convictions are subject to other constitutional infirmities.
98
At the outset it is important to focus on the precise factual situation in each of these cases. Common to all three are the circumstances that petitioners were given the invitation extended to the public at large to patronize these establishments; that they were told that they could be served food only at the Negro lunch counters; that their conduct was not unruly or offensive; and that none of them was ever asked by the owners or their agents to leave the establishments. While in Briscoe, No. 27, there was some very slight, but in my view constitutionally adequate, evidence that those petitioners were expressly asked 'to move' from the 'white' lunch counter,4 and undisputed evidence that they did not do so, in Garner, No. 26, and Hoston, No. 28, there was no evidence whatever of any express request to the petitioners in those cases that they move from the 'white' lunch counters where they were sitting.
99
Nor do I think that any such request is fairly to be implied from the fact that petitioners were told by the management that they could not be served food at such counters. The premises in both instances housed merchandising establishments, a drugstore in Garner, a department store in Hoston, which solicited business from all comers to the stores I think the reasonable inference is that the management did not want to risk losing Negro patronage in the stores by requesting these petitioners to leave the 'white' lunch counters, preferring to rely on the hope that the irritations of white customers or the force of custom would drive them away from the counters.5 This view seems the more probable in circumstances when, as here, the 'sitters" behavior was entirely quiet and courteous, and, for all we know, the counters may have been only sparsely, if to any extent, occupied by white persons.6
100
In short, I believe that in the Garner and Hoston cases the records should be taken as indicating that the petitioners remained at the 'white' lunch counters with the implied consent of the management,7 even though a similar conclusion may not be warranted in the Briscoe case. Under these circumstances, applying principles announced in Cantwell, I would hold all these convictions offensive to the Fourteenth Amendment, in that: (1) in Garner and Hoston petitioners' conduct, occurring with the managements' implied consent, was a form of expression within the range of protections afforded by the Fourteenth Amendment which could in no event be punished by the State under a general breach of the peace statute; and (2) in Briscoe, while petitioners' 'sitting' over the management's objection, cannot be deemed to be within the reach of such protections, their convictions must nonetheless fall because the Louisiana statute, as there applied (and a fortiori as applied in the other two cases), was unconstitutionally vague and uncertain.
101
In the Cantwell case a Jehovah's Witness had been convicted for breach of the peace under a Connecticut statute embracing what was considered to be the common-law concept of that offense.8 'The facts which were held to support the conviction * * * were that he stopped two men in the street, asked, and received, permission to play a phonograph record, and played the record 'Enemies,' which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record and were tempted to strike Cantwell (the defendant) unless he went away. On being told to be on his way he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed.' 310 U.S., at 302—303, 60 S.Ct., at 903.
102
Accepting the determination of the state courts that although the defendant himself had not been disorderly or provocative, his conduct under Connecticut law nonetheless constituted a breach of the peace because of its tendency to inflame others, this Court reversed. Starting from the premise that the 'fundamental concept of liberty embodied in (the Fourteenth) Amendment embraces the liberties guaranteed by the First Amendment,' the Court found that the defendant's activities fell within the protection granted to the 'free exercise' of religion. Then recognizing the danger to such liberties of 'leaving to the executive and judicial branches too wide a discretion' in the application of a statute 'sweeping in a great variety of conduct under a general and indefinite characterization,' the Court held that the defendant's activities could not constitutionally be reached under a general breach of the peace statute, but only under one specifically and narrowly aimed at such conduct. 310 U.S., at 307—308, 60 S.Ct., at 907. The Court stated:
103
'Although the contents of the (phonograph) record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.' (Citing to such cases as Schenck v. United States, 249 U.S. 47.) 310 U.S., at 311, 60 S.Ct., at 906.
104
I think these principles control the Garner and Hoston cases. There was more to the conduct of those petitioners than a bare desire to remain at the 'white' lunch counter and their refusal of a police request to move from the counter. We would surely have to be blind not to recognize that petitioners were sitting at these counters, where they knew they would not be served, in order to demonstrate that their race was being segregated in dining facilities in this part of the country.
105
Such a demonstration, in the circumstances of these two cases, is as much a part of the 'free trade in ideas,' Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (Holmes, J., dissenting), as is verbal expression, more commonly thought of as 'speech.' It, like speech, appeals to good sense and to 'the power of reason as applied through public discussion,' Whitney v. People of State of California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (Brandeis, J., concurring), just as much as, if not more than, a public oration delivered from a soapbox at a street corner. This Court has never limited the right to speak, a protected 'liberty' under the Fourteenth Amendment, Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138, to mere verbal expression. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633—634, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628. See also N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488. If the act of displaying a red flag as a symbol of opposition to organized government is a liberty encompassed within free speech as protected by the Fourteenth Amendment, Stromberg v. California, supra, the act of sitting at a privately owned lunch counter with the consent of the owner, as a demonstration of opposition to enforced segregation, is surely within the same range of protections. This is not to say, of course, that the Fourteenth Amendment reaches to demonstrations conducted on private property over the objection of the owner (as in Briscoe), just as it would surely not encompass verbal expression in a private home if the owner has not consented.
106
No one can deny the interest that a State has in preserving peace and harmony within its borders. Pursuant to this interest, a state legislature may enact a trespass statute, or a disturbance of the peace statute which either lists in detail the acts condemned by legitimate state policy or proscribes breaches of the peace generally, thus relating the offense to the already developed body of common law defining that crime. Or it may, as Louisiana has done, append to a specific enumeration in a breach of the peace statute a 'catch-all' clause to provide for unforeseen but obviously disruptive and offensive behavior which cannot be justified, and which is not within the range of constitutional protection.
107
But when a State seeks to subject to criminal sanctions conduct which, except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the Fourteenth Amendment, it cannot do so by means of a general and all-inclusive breach of the peace prohibition. It must bring the activity sought to be proscribed within the ambit of a statute or clause 'narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State.' Cantwell v. Connecticut, supra, 310 U.S., at 311, 60 S.Ct., at 906; Thornhill v. State of Alabama, 310 U.S. 88, 105,9 60 S.Ct. 736, 745. And of course that interest must be a legitimate one. A State may not 'suppress free communication of views, religious or other, under the guise of conserving desirable conditions.' Cantwell, supra, at 308, 60 S.Ct. at 905.
108
These limitations exist not because control of such activity is beyond the power of the State, but because sound constitutional principles demand of the state legislature that it focus on the nature of the otherwise 'protected' conduct it is prohibiting, and that it then make a legislative judgment as to whether that conduct presents so clear and present a danger to the welfare of the community that it may legitimately be criminally proscribed.10
109
The Louisiana Legislature made no such judgment before the petitioners in Garner and Hoston engaged in their 'sit-in' activity. In light of the Cantwell case, whose reasoning of course cannot be deemed limited to 'expression' taking place on the public streets, cf. Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, Niemotko v. State of Maryland, 340 U.S. 268, 281, 71 S.Ct. 325, 328, 332, 95 L.Ed. 267 (concurring opinion), Louisiana could not, in my opinion, constitutionally reach those petitioners' conduct under subsection (7)—the 'catch-all clause'—of its then existing disturbance of the peace statute.11 In so concluding, I intimate no view as to whether Louisiana could by a specifically drawn statute constitutionally proscribe conduct of the kind evinced in these two cases, or upon the constitutionality of the statute which the State has recently passed.12 I deal here only with these two cases, and the statute that is before us now.
IV.
110
Finally, I believe that the principles of Cantwell lead to the conclusion that this general breach of the peace provision must also be deemed unconstitutional for vagueness and uncertainty, as applied in the circumstances of all these cases. As to Garner and Hoston this affords an alternative ground for reversal. As to Briscoe, where the evidence falls short of establishing that those petitioners remained at the 'white' lunch counter with the express or implied consent of the owner (notes 4, 5, supra), I would rest reversal solely on this ground.13
111
While Cantwell was not explicitly founded on that premise, it seems to me implicit in the opinion that a statute which leaves the courts in uncertainty as to whether it was intended to reach otherwise constitutionally protected conduct must by the same token be deemed inadequate warning to a defendant that his conduct has been condemned by the State. See Chaplinsky v. New Hampshire, 315 U.S. 568, 573—574, 62 S.Ct. 766, 770, 86 L.Ed. 1031. Cf. Winters v. People of State of New York, 333 U.S. 507, 509—510, 68 S.Ct. 665, 667, 92 L.Ed. 840; Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205; Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654. Such warning is, of course, a requirement of the Fourteenth Amendment. Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.
112
This conclusion finds added support in the cases requiring of state legislatures more specificity in statutes impinging on freedom of expression than might suffice for other criminal enactments. See Winters v. People of State of New York, supra, 333 U.S., at 509—510, 68 S.Ct., at 667; Smith v. California, supra, 361 U.S., at 151, 81 S.Ct., at 217; cf. Herndon v. Lowry, 301 U.S. 242, 261—264, 57 S.Ct. 732, 742, 81 L.Ed. 1066. To the extent that this Louisiana statute is explicit on the subject of expression it prohibits only that which is 'unnecessarily loud, offensive, or insulting' or activity carried on 'in a violent or tumultuous manner by any three or more persons' (note 1, supra). No charge was made or proved that petitioners' conduct met any of those criteria. Nor has the statute been elucidated in this respect before, or since, petitioners' conviction, by any decision of the Louisiana courts of which we have been advised. Cf. Winters v. People of State of New York, supra, 333 U.S., at 514, 68 S.Ct., at 669; Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895. Lastly, it is worth observing that in State v. Sanford the Louisiana Supreme Court seriously questioned on the score of vagueness the validity of that earlier breach of the peace statute under the State Constitution, as there applied to conduct within the same range of constitutional protection.14
113
In the absence of any Louisiana statute purporting to express the State's overriding interest in prohibiting petitioners' conduct as a clear and present danger to the welfare of the community, peaceful demonstration on public streets, and on private property with the consent of the owner, was constitutionally protected as a form of expression. Louisiana's breach of the peace statute drew no distinct line between presumably constitutionally protected activity and the conduct of the petitioners in Briscoe, as a criminal trespass statute might have done.15 The fact that in Briscoe, unlike Garner and Hoston, the management did not consent to the petitioners' remaining at the 'white' lunch counter does not serve to permit the application of this general breach of the peace statute to the conduct shown in that case. For the statute by its terms appears to be as applicable to 'incidents fairly within the protection of the guarantee of free speech,' Winters v. People of State of New York, supra, 333 U.S., at 509, 68 S.Ct., at 667, as to that which is not within the range of such protection. Hence such a law gives no warning as to what may fairly be deemed to be within its compass. See Note, 109 U. of Pa.L.Rev. 67, 75—76, 99—104 (1960).
114
For the foregoing reasons I dissent from the opinion of the Court, but join in the judgment.
1
Unless otherwise indicated, the term 'petitioners' refers to the petitioners in all three cases, Nos. 26, 27 and 28.
2
In No. 26, Garner et al. v. Louisiana, the petitioners, two Negro students at Southern University, took seats at the lunch counter of Sitman's Drug Store in Baton Rouge, and in No. 27, Briscoe et al. v. Louisiana, the lunch counter at which the seven Negro students sought service was in the restaurant section of the Greyhound Bus Terminal in Baton Rouge.
3
The same is true, of course, with regard to the bus terminal in No. 27. The terminal itself caters to both races, but separate facilities are maintained for the service of food.
4
In No. 26, one of the petitioners had purchased an umbrella in the drugstore just prior to taking his seat at the lunch counter, and had encountered no difficulty in making the purchase.
5
Although the problem was exactly the same in all three cases, the trial judge appeared to use different formulae for concluding petitioners' guilt in each opinion. In No. 26, the acts of the petitioners were said to be 'an act done in a manner calculated to, and actually did, unreasonably disturb and alarm the public.' In No. 27, the very same conduct was said to be 'an act on their part as would unreasonably disturb and alarm the public.' In No. 28, it was declared that the conduct 'foreseeably could alarm and disturb the public.' (Emphasis added.)
6
The opinions of the Supreme Court of Louisiana are not officially reported.
Under Art. 7, Sec. 10, of the Louisiana Constitution, the appellate jurisdiction of the Supreme Court over criminal cases extends only to questions of law, and then only where, inter alia, a fine exceeding three hundred dollars or imprisonment exceeding six months has been imposed. See State v. Di Vincenti, 232 La. 13, 93 So.2d 676; State v. Gaspard, 222 La. 222, 62 So.2d 281; State v. Price, 164 La. 376, 113 So. 882. The Louisiana Supreme Court has held that a question of law is presented, and that a case is thus reviewable, where the contention is that there is no evidence to support an element of the crime charged. State v. Daniels, 236 La. 998, 109 So.2d 896; State v. Brown, 224 La. 480, 70 So.2d 96; State v. Sbisa, 232 La. 961, 95 So.2d 619, and cases cited at n. 6, 232 La., at 969—970, 95 So.2d, at 622. See Comment, 19 La.L.Rev. 843 (1959). Despite the court's purported review of the questions of law in these cases, the degree of punishment inflicted would deprive the court of appellate jurisdiction under Art. 7, Sec. 10. However, the Supreme Court also has a general supervisory jurisdiction, exercised only in the sound discretion of the court (see State v. Morgan, 204 La. 499, 502, 15 So.2d 866, 867), over all inferior courts under Art. 7, Sec. 10; it appears that this is the provision which the petitioners attempted to invoke with their extraordinary writs in these cases. See also Art. 7, Sec. 2, of the Louisiana Constitution.
7
In addition to the petitioners' contentions the United States argues that in No. 27 the petitioners' arrests and convictions deprived them of their rights under the Interstate Commerce Act to service on a nondiscriminatory basis in a restaurant of a bus terminal operated as part of interstate commerce. Cf. Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206.
8
The Government, as well as petitioners, point out that in addition to state statutes requiring segregation in specific situations in Louisiana, the Louisiana Legislature in 1960 adopted the following preface to a joint resolution concerning the possible integration of any tax-supported facility in the State:
'WHEREAS, Louisiana has always maintained a policy of segregation of the races, and
'WHEREAS, it is the intention of the citizens of this sovereign state that such a policy be continued. * * *' Act No. 630 of 1960, to amend Article X of the Louisiana Constitution.
9
See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624.
10
Cf. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. See Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629, and the cases cited at footnote 13.
11
Counsel for the respondent admitted on oral argument that the Louisiana trespass statute in force at the time of the petitioners' arrests would probably not have applied to these facts. Apparently, the Louisiana Legislature agreed, for, in 1960, subsequent to petitioners' acts, the legislature passed a new criminal trespass statute (LSA—R.S. 14:63.3 (1960 Supp.)), which reads:
'No person shall without authority of laws go into or upon * * * any structure * * * which belongs to another * * * after having been forbidden to do so * * * by any owner, lessee, or custodian of the property or by any other authorized person. * * *'
We express no opinion whether, on the facts of these cases, the petitioners' conduct would have been unlawful under this statute.
12
The Supreme Court of Louisiana has also held that an accused may not be convicted on pleadings which fail to state the specific crime with which he is charged. State v. Morgan, 204 La. 499, 15 So.2d 866 (1943).
13
We express no view as to the constitutionality of the petitioners' convictions as attacked by their argument that the statute (§ 103(7)) is so vague and uncertain, with its resulting lack of notice of what conduct the legislature intended to make criminal, as to violate due process. Cf. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840.
14
The predecessor of Title 14, Section 103, was Act No. 227 of 1934, which provided, inter alia, 'That any person who shall go into any public place, (or) into or near any private house * * * and who shall (shout, swear, expose himself, discharge a firearm) * * * or who shall do any other act, in a manner calculated to disturb or alarm the inhabitants thereof, or persons present * * *' should be adjudged guilty of breaching the peace. In State v. Sanford, 203 La. 961, 14 So.2d 778, discussed immediately following in the text, the defendants were charged, as were the petitioners in the cases at bar, under the general, catch-all provision.
15
See Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851 (dictum).
16
See 2 Sutherland, Statutes and Statutory Construction, §§ 4909—4910 (Horack ed. 1943).
17
Such an interpretation has not been made where there was evidence of a contrary legislative intent or judicial reading. United States v. Alpers, 338 U.S. 680, 682—683, 70 S.Ct. 352, 354, 94 L.Ed. 457; Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 88—89, 55 S.Ct. 50, 52, 79 L.Ed. 211.
18
See also Town of Ponchatoula v. Bates, supra, note 15.
19
LSA—R.S. 14:103.1 (1960 Supp.), now reads, in pertinent part, as follows:
'A. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby:
'(4) refuses to leave the premises of another when requested so to do by any owner, lessee, or any employee thereof, shall be guilty of disturbing the peace.'
20
In all three cases the prosecution called as witnesses only the arresting officer and an employee from the restaurant in question. In none of the cases did the petitioners themselves testify or introduce any witnesses in their defense.
21
There is some inconsistency in the record, not material to our disposition of the case (see No. 28), as to who called the police; a police officer made a statement based on hearsay that the desk sergeant was called by 'some woman.'
22
As noted previously, this is the only case in which a representative of the restaurant called the police. In addition, this is the only case in which there is anything in the record concerning the possibility of a disturbance, and even here it is limited to the manager's single statement noted above.
23
Of course, even such a warning was not sufficient evidence to support a finding of breach of the peace in State v. Sanford.
24
Compare the basis for the state action in Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, and Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5.
25
The evidence in the records in Nos. 26 and 27 is similar. Each witness called by the State testified that the petitioners were arrested solely because they were Negroes sitting at a white lunch counter.
26
LSA—R.S. 15:422 provides that Louisiana courts may take judicial notice of 'social and racial conditions prevailing in (the) state.' See State v. Bessa et al., 115 La. 259, 38 So. 985.
27
Compare the evidence contained in the records in Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; and in Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267.
*
If it were clear from these records that the proprietors involved had changed their policies and consented to the petitioners' remaining, we would, of course, have an entirely different case.
1
Article 135 of Louisiana's 1868 Constitution forbade segregation of the races in public schools. But that prohibition was dropped from Louisiana's 1879 Constitution. The latter by Article 231 authorized the establishment of a university for Negroes.
Woodward, Strange Career of Jim Crow (1955), pp. 7—8:
'* * * In bulk and detail as well as in effectiveness of enforcement the segregation codes were comparable with the black codes of the old regime, though the laxity that mitigated the harshness of the black codes was replaced by a rigidity that was more typical of the segregation code. That code lent the sanction of law to a racial ostracism that extended to churches and schools, to housing and jobs, to eating and drinking. Whether by law or by custom, that ostracism eventually extended to virtually all forms of public transportation, to sports and recreations, to hospitals, orphanages, prisons, and asylums, and ultimately to funeral homes, morgues, and cemeteries.'
2
We have held on numerous occasions that the States may not use their powers to enforce racial segregation in public facilities. Mayor and City Council of Baltimore City v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955) (public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955) (municipal golf courses); Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956) (buses operated on city streets); New Orleans City Park Improvement Association v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958) (golf course and city parks). For decisions of the lower federal courts holding racial segregation unconstitutional as applied to facilities open to public enjoyment and patronage, see Department of Conservation & Development, Division of Parks, of Virginia, v. Tate, 4 Cir., 231 F.2d 615 (state park); City of St. Petersburg v. Alsup, 5 Cir., 238 F.2d 830 (municipal beach and swimming pool); Morrison v. Davis, 5 Cir., 252 F.2d 102 (public transportation facilities).
1
The Louisiana statute, LSA—R.S. 14:103, then provided:
'Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
'(1) Engaging in a fistic encounter; or
'(2) Using of any unnecessarily loud, offensive, or insulting language; or
'(3) Appearing in an intoxicated condition; or
'(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or
'(5) Holding of an unlawful assembly; or
'(6) Interruption of any lawful assembly of people; or
'(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public.
'Whoever commits the crime of disturbing the peace shall be fined not more than one hundred dollars, or imprisoned for not more than ninety days, or both.'
2
As Mr. Justice Jackson put it in Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683:
'We are not at liberty to conjecture that the trial court acted under an interpretation of the state law different from that which we might adopt and then set up our own interpretation as a basis for declaring that due process has been denied. We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.'
3
There Mr. Justice Holmes said of a claim that a state court was constitutionally obliged to follow its own precedents: 'Even if it be true, as the plaintiff in error says, that the supreme court of Colorado departed from earlier and well-established precedents to meet the exigencies of this case, whatever might be thought of the justice or wisdom of such a step, the Constitution of the United States is not infringed. It is unnecessary to lay down an absolute rule beyond the possibility of exception. Exceptions have been held to exist. But, in general the decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the 14th Amendment merely because it is wrong or because earlier decisions are reversed.'
4
In Briscoe, the waitress who had spoken to the defendants testified at the trial that she told them 'they would have to go to the other side to be served.' It was only when she responded affirmatively to a leading question, 'And you told them you couldn't serve them and asked them to move, is that correct?' that she provided any evidence at all to support a finding that the defendants were even asked by the management to move from the 'white' lunch counter. Contrary to what the trial court in Briscoe may have meant when it said that the defendants 'were requested to leave and they refused to leave' before the police appeared, the waitress' laconic reply furnished no evidence whatever that the defendants were requested to leave the establishments.
5
The owner of the drugstore in Garner testified that his store provided eating 'facilities for only one race, the white race,' and that when petitioners sat down at the lunch counter he 'advise(d) them that we couldn't serve them.' He admitted that 'negroes are very good customers' in the drugstore section of the establishment. In Hoston, the manager of the department store repeatedly insisted at the trial that the petitioners had not been 'requested to move over to the counter reserved for colored people.' When asked, 'They weren't asked to go over there?' he replied, 'They were advised that we would serve them over there.' He denied that the petitioners had been 'refused' service: 'We did not refuse to serve them. I merely did not serve them and told them that they would be served on the other side of the store. * * * As I stated before, we did not refuse to serve them. We merely advised them they would be served on the other side of the store.'
In contrast to what appears in Garner and Hoston, the circumstances in Briscoe see to me quite different. There is little reason to believe that the management of a restaurant in a Greyhound Bus Terminal would be nearly as concerned with offending Negro patrons because of their refusal to sit at the Negro counter as would the management of a merchandising establishment dependent on other trade than that available at its eating facilities. It may well have been assumed that pique at being asked to leave a 'white' lunch counter would readily yield to the need of having to use the buses to get to one's destination. Further, for all that appears, the restaurant and bus companies, in this instance, may have been entirely separate enterprises, or these 'sitters' may only have been 'eaters' and not 'travelers' as well.
6
In Garner there was evidence that 'a number of customers (were) seated at the counter.' In Hoston there was no evidence even of that kind.
7
The manager of the department store in Hoston seemed particularly complacent. Although two Negro girls sat 'adjoining' him while he was eating lunch at the counter, he finished his meal before calling the police. He instructed a waitress 'to offer service at the counter across the aisle,' but never approached the petitioners himself. He testified that his purpose in calling the police was that he 'feared that some disturbance might occur.'
8
The Connecticut statute, Cong.Gen.Stat. § 6194 (1930), provided:
'Any person who shall disturb or break the peace by tumultuous and offensive carriage, noise or behavior, or by threatening, traducing, quarreling with, challenging, assaulting or striking another or shall disturb or break the peace, or provoke contention, by following or mocking any person, with abusive or indecent language, gestures or noise, or shall, by any writing, with intent to intimidate any person, threaten to commit any crime against him or his property or shall write or print and publicly exhibit or distribute, or shall publicly exhibit, post up or advertise, any offensive, indecent or abusive matter concerning any person, shall be fined not more than five hundred dollars or imprisoned in jail not more than one year or both.' (Emphasis added.)
9
Compare, for example, the statutes upheld in Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Valentine v. Chrestensen, 316 U.S. 52; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049.
10
Mr. Justice Roberts, speaking for a unanimous Court in Cantwell, stated (310 U.S., at 307—308, 60 S.Ct., at 904, 905):
'Conviction on the fifth count (disorderly conduct) was not pursuant to a statute evincing a legislative judgment that street discussion of religious affairs, because of its tendency to provoke disorder, should be regulated, or a judgment that the playing of a phonograph on the streets should in the interest of comfort or privacy be limited or prevented. Violation of an Act exhibiting such a legislative judgment and narrowly drawn to prevent the supposed evil, would pose a question differing from that we must here answer. Such a declaration of the State's policy would weigh heavily in any challenge of the law as infringing constitutional limitations. Here, however, the judgment is based on a common law concept of the most general and undefined nature. The court below has held that the petitioner's conduct constituted the commission of an offense under the State law, and we accept its decision as binding upon us to that extent.
'The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.'
11
It follows, of course, that petitioners' refusal to accede to the request to leave made by police officers could also not constitutionally be punished under this general statute. Were it otherwise, the determination whether certain conduct constitutes a clear and present danger would be delegated to a police officer. Simply by ordering a defendant to cease his 'protected' activity, the officer could turn a continuation of that activity into a breach of the peace.
12
After the incidents which gave rise to these cases, the Louisiana Legislature passed a bill adding to the disturbance of the peace statute a second clause, LSA—R.S. § 14:103, subd. B, which provides:
'B. Any person or persons * * * while in or on the premises of another * * * on which property any store, restaurant, drug store * * * or any other lawful business is operated which engages in selling articles of merchandise or services or accommodation to members of the public, or engages generally in business transactions with members of the public, who shall:
'(1) prevent or seek to prevent, or interfere or seek to interfere with the owner or operator of such place of business, or his agents or employees, serving or selling food and drink * * * or
'(2) prevent or seek to prevent, or interfere or seek to interfere with other persons who are expressly or impliedly invited upon said premises, or with prospective customers coming into or frequenting such premises in the normal course of the operation of the business conducted and carried on upon said premises, shall be guilty of disorderly conduct and disturbing the peace * * *.' 1 La.Acts, 1960, pp. 235—236.
13
Because of the absence of any evidence in the Briscoe record regarding the legal relationship between the restaurant and the Greyhound Bus Terminal in Baton Rouge, on whose premises it was located, I would not pass in this case on the Solicitor General's suggestion, made as amicus curiae, that segregated facilities were prohibited by § 216(d) of Part II of the Interstate Commerce Act, 49 U.S.C. § 316(d), 49 U.S.C.A. § 316(d). See Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206.
14
I do not intend to suggest that the present Louisiana statute, either on its face or as it might be applied with respect to conduct not within the 'liberty' assured by the Fourteenth Amendment, is or would be unconstitutional for vagueness. Cf. Winters v. People of State of New York, supra, 333 U.S., at 524 526, 68 S.Ct., at 676 (dissenting opinion).
15
The criminal trespass statute in force in Louisiana at the time of petitioners' acts prohibited only 'unauthorized and intentional taking (of) possession' and 'unauthorized and intentional entry' on another's property. LSA—R.S. § 14:63 (1950). No attempt was made to prosecute the petitioners under this law. The statute has since been amended to cover 'remaining in places after being forbidden,' 1 La.Acts, 1960, pp. 245—248, and an anti-trespass provision is now included in the disturbance of the peace statute, 1 La.Acts, 1960, p. 234.
| 12
|
368 U.S. 208
82 S.Ct. 289
7 L.Ed.2d 240
ST. REGIS PAPER COMPANY, Petitioner,v.UNITED STATES.
No. 47.
Argued Nov. 9, 1961.
Decided Dec. 11, 1961.
Rehearing Denied Jan. 15, 1962.
See 368 U.S. 972, 82 S.Ct. 437.
[Syllabus from pages 208-210 intentionally omitted]
Horace R. Lamb, Washington, D.C., for petitioner.
Archibald Cox, Sol. Gen., Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Pursuant to § 6(b) of the Federal Trade Commission Act,1 the Commission issued orders directing the petitioner and corporations acquired by it to submit various reports. Petitioner failed to furnish all of the requested information, and the United States at the request of the Commission brought the present suit in the District Court seeking (1) a mandatory injunction to compel compliance with all of the orders2 and (2) statutory forfeiture of $100 for every day petitioner was in default of those orders directed specifically to it.3
2
The District Court found that some of the requests were unenforceable because of vagueness and that others had been answered either specifically or by reference to materials previously furnished. Petitioner was directed to answer the remaining items, including those calling for file copies of census reports. However, because some of the requests were too vague to be enforced, the District Court did not award the statutory forfeitures. 181 F.Supp. 862. The Court of Appeals affirmed insofar as the District Court ordered compliance, but reversed that portion of the decision refusing to award the statutory forfeitures. 285 F.2d 607. We granted a limited writ of certiorari because of a conflict in the circuits on the question of compulsory production of the copies of census reports and the general importance of certain other questions in the administration of the investigatory provisions of the Federal Trade Commission Act. 365 U.S. 857, 81 S.Ct. 825, 5 L.Ed.2d 822. On motion of petitioner, we also granted a stay tolling the further running and accumulation of forfeitures awaiting our decision. We now affirm the judgment of the Court of Appeals.
3
Petitioner contends that it cannot lawfully be required to produce copies of statutory reports made by it to the Census Bureau because of their confidential nature. The remainder of the inquiries found enforceable by the District Court are not now contested by the petitioner. As to the forfeitures, petitioner advances several arguments: (1) The statutory forfeiture of § 10 is not applicable because it applies only to a failure to furnish 'reports' while the inquiries directed to petitioner called for answers to specific questions; (2) No forfeitures can be imposed because the orders were only partially enforceable; and (3) It is a denial of due process to assess penalties for failure to obey orders during a time petitioner was without remedy to test their validity.
I.
4
The controversy culminating in this litigation had its inception in September 1956. At that time the Commission requested petitioner to furnish voluntarily information concerning certain of its corporate acquisitions to enable the Commission to determine whether there had been any violations of the antitrust laws. A year later, having failed to obtain the bulk of the requests, the Commission served a subpoena duces tecum on petitioner. It covered somewhat the same information as was previously requested but, in addition, required similar data concerning three more corporate acquisitions effected in the interim. In due time petitioner fully complied with the subpoena, and the hearing before the Examiner was concluded. After reviewing the material, however, the Commission found that it needed additional information and in June 1958 requested petitioner's counsel to furnish it. A running exchange of correspondence between petitioner's counsel and the Commission's staff followed. Counsel contended, inter alia, that no additional information was needed and requested a statement of necessity therefor. Upon counsel's insistence, three separate levels of authority in the Commission, from the local attorney in New York City to the Director of the Bureau of Investigation in Washington, explained the need for the information, advised that the request therefor had been fully authorized and requested petitioner to comply therewith. This discussion continued for over six months during which time petitioner furnished only two documents of the many requested. On January 6, 1959, the Commission instigated a formal investigation of the acquisitions made by petitioner during the preceding five years. Pursuant to this investigation the Commission issued six orders requiring the filing within 30 days of 'special reports' which were to contain specified information and documents. On motion of petitioner, the Commission temporarily suspended these orders while it considered petitioner's motion that they be vacated. On May 6, 1959, the motion to vacate was denied, and petitioner was directed to comply by May 28, 1959. On June 4, 1959, the Commission broadened its investigation to cover two corporate acquisitions by petitioner occurring after the instigation of the formal investigation. Accordingly three more orders requiring 'special reports' were issued. Upon petitioner's failure to comply with either set of orders, notices of default were served on June 20, 1959, and July 24, 1959, respectively. This complaint was filed on September 15, 1959, three years after the inquiry was opened. The complaint sought a mandatory injunction which would compel petitioner to file with the Commission the 'special reports' sought by all nine orders. However, forfeitures were claimed only for petitioner's failure to respond to orders numbered 1 and 7, which were directed specifically to petitioner. The other seven orders had been directed to corporations acquired by petitioner rather than to it.
II.
5
Among the items ordered enforced and with which the petitioner still refuses to comply are requests for file copies of certain reports previously made to the Census Bureau. The petitioner claims each of these to be confidential. There is a conflict between the Courts of Appeal on the point.4 Here both the District Court and the Court of Appeals have held these file copies not restricted, and with this conclusion we agree.
6
Petitioner's claim is based on §§ 8 and 9(a) of the Census Act, 13 U.S.C. §§ 8—9(a), 13 U.S.C.A. §§ 8, 9(a), and assurances of confidentiality by the Government. It can be noted immediately that § 8 does not in any way support petitioner's position. This section grants the Secretary of Commerce the discretion to furnish to named authorities data taken from information furnished the Census Bureau on censuses of population, agriculture and housing. Subsection (c) thereof provides that when the Secretary furnishes such data it shall '(i)n no case' be used by the recipient 'to the detriment of the persons to whom such information relates.' Not only has the Commission not been furnished any information by the Secretary, but the information involved does not relate to the particular censuses covered by the section, and so this section is clearly inapplicable here.
7
The prohibitions of § 9(a) apply to the Secretary, and other officers and employees of the Department of Commerce. Each of them is prohibited from using the information supplied for other than statistical purposes; and, from making any publication thereof wherein the name or identity of those furnishing information is revealed; and finally, from permitting anyone outside of the employ of the Department of Commerce to 'examine the individual reports' filed.5 The form of the report provided by the Census Bureau is marked 'Confidential' and in addition states that '(i)t cannot be used for purposes of taxation, investigation or regulation.'6 The Bureau also furnishes the reporting corporations a copy of this form, such as the one involved here. The copies are marked 'Keep this copy for your files,' and the Bureau is said to have advised reporting companies that they are confidential. It also appears that a Presidential Proclamation admonished reporting companies that '(t)he Census had nothing to do * * * with the enforcement of any national, state, or local law or ordinance. There need be no fear that any disclosure will be made regarding any individual person or his affairs. For the due protection of the rights and interests of the persons furnishing information every employee of the Census Bureau is prohibited, under heavy penalty, from disclosing any information which may thus come to his knowledge.'7 Petitioner also relies upon an opinion of the Attorney General, 36 Op.Atty.Gen. 362 (1930).
8
Similar contentions were considered by the Court of Appeals for the Seventh Circuit in Federal Trade Comm. v. Dilger, 276 F.2d 739 (1960), where it was held that these 'assurances of confidentiality and protection constitute a pledge of good faith on the part of the Congress, the President and the Department of Commerce. * * * The United States has given its word and should be permitted to keep it.' 276 F.2d, at 744. It concludes that since the Commission cannot obtain the original it should not be permitted 'to do indirectly that which it cannot to directly.' Id., at 743.
9
The Solicitor General contends that for the purposes of this case petitioner has waived the point by voluntarily submitting like data to the Commission during its investigation herein. We cannot agree. Reaching the merits of the issue he points out that the government agencies are at loggerheads on the problem, the Department of Commerce, Census Bureau and the Bureau of the Budget believe that the copies are not subject to legal process, while the Federal Trade Commission and the Antitrust Division of the Department of Justice, which filed this suit, contend to the contrary. The Solicitor General, 'fully recognizing the delicate balance of opposing considerations,' has concluded 'on balance' that the copies are not subject to compulsive production. As has been noted, we do not agree.
10
As we have seen, the prohibitions against disclosure contained in § 9 run only against the officials receiving such information and do not purport to generally clothe census information with secrecy. The Solicitor General admits that 'literally construed' the restrictions of the statute go no further. But he insists that since the purpose of the statute is to encourage the free and full submission of statistical data to the Bureau, this can be accomplished only through the creation of a confidential relationship which will extend the privilege to the petitioner and like reporting companies. We do not believe that the language of the President, supra, gives the statute the meaning claimed for it; nor can the legend on the Census Bureau forms or its advice to reporting companies extend the coverage of the Act. Cf. United States v. State of California, 332 U.S. 19, 39 40, 67 S.Ct. 1658, 1668—1669, 91 L.Ed. 1889 (1947); United States v. Stewart, 311 U.S. 60, 70, 61 S.Ct. 102, 108, 85 L.Ed. 40 (1940); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225 227, 60 S.Ct. 811, 846, 84 L.Ed. 1129 (1940). We fully realize the importance to the public of the submission of free and full reports to the Census Bureau, but we cannot rewrite the Census Act. It does not require petitioner to keep a copy of its report nor does it grant copies of the report not in the hands of the Census Bureau an immunity from legal process. Ours is the duty to avoid a construction that would suppress otherwise competent evidence unless the statute, strictly construed, requires such a result. That this statute does not do. Congress did not prohibit the use of the reports per se but merely restricted their use while in the hands of those persons receiving htem, i.e., the government officials. Indeed, when Congress has intended like reports not to be subject to compulsory process it has said so. See 45 U.S.C. § 41, 45 U.S.C.A. § 41,8 49 U.S.C. § 320(f), 49 U.S.C.A. § 320(f).9 Moreover, although tax returns, like these census reports, are made confidential within the government bureau, Internal Revenue Code of 1954, §§ 6103 7213(a), 26 U.S.C.A. §§ 6103, 7213(a), copies in the hands of the taxpayer are held subject to discovery.10 Likewise the Criminal Code, 18 U.S.C. § 1905, 18 U.S.C.A. § 1905,11 prohibits federal employees generally from disclosing trade secrets and other business data received in the course of their official duties, but the same information is obtainable from the reporting company's files or personnel by judicial process.
11
This conclusion is buttressed by the fact that though petitioner furnishes the required reports to the Census Bureau it is not relieved from furnishing the same information to the Federal Trade Commission. This is made certain by an Act of Congress specifically providing that nothing in the Census Act 'shall be deemed to revoke or impair the authority of any other Federal agency with respect to the collection or release of information.' 13 U.S.C. § 132, 13 U.S.C.A. § 132. It appears, therefore, that through the use of special reports the Commission could require the petitioner to supply the identical information from its files. Hence by securing the retained file copy the Commission is merely obtaining in a form already prepared that information which it has the power to require petitioner to furnish from its records.
III.
12
Petitioner next claims that the orders required 'answers in writing to specific questions' under § 6(b) as distinguished from the 'special reports' also authorized by that section, but that the forfeiture provision of § 10 penalizing the failure to file 'any annual or special reports' does not include the phrase 'answers in writing to specific questions' and is, therefore, inapplicable. We do not agree.
13
The Commission contends that its orders here in fact called for information in the nature of 'special reports,' and it so designated each of the nine orders at the time of their issuance. Examination of the orders by no means proves the Commission to be in error, for it appears that practically all of the requests called for the furnishing of statistical or like information, details of organization and operation, specific documents, etc. As the Court of Appeals stated, 'the cumulative effect of all the questions is substantially that of a request for a report.' 285 F.2d, at 615.
14
While this is true, it cannot be denied that in many instances specific information was requested and 'answers in writing to specific questions' were contemplated. But this does not disqualify the materials from being special reports, for the statutory reference to 'answers in writing to specific questions' merely elaborates the power to require special reports.
15
The source of the Commission's power, as we have noted, is § 6(b), see note 1, supra, which authorizes the Commission to order corporations to file 'annual or special, or both annual and special reports or answers in writing to specific questions.' Since the forfeiture provision of § 10, see note 3, supra, only refers to 'any annual or special report,' petitioner argues that forfeiture is inapplicable to a corporation failing to give 'answers in writing to specific questions,' which it contends is a separate power quite distinct from the power to order reports. But if this is true there would be no penalty where a corporation deliberately refused to comply with a lawful Commission order to answer specific questions, for the only penalty available against corporations is the forfeiture provision. Thus a corporation that refused to file an annual or special report would be subject to a $100 per day forfeiture. An individual under subpoena who refused to appear and testify or supply documents would be subject to a fine of $1,000 to $5,000 and/or a jail sentence up to three years. But under petitioner's interpretation of the Act there would be no penalty whatsoever where a corporation deliberately failed to file answers to specific questions. The only remedy would be a mandatory injunction to force it to do so. We cannot attribute such an anomaly to Congress. Rather we would assume that in placing the phrase 'answers in writing to specific questions' in § 6(b) Congress was merely explicating what the Commission might require a corporation to include in an annual or special report.
16
Moreover, the legislative history of the Act does not support petitioner's theory that the phrase 'answers in writing to specific questions' refers to a separate power of the Commission. Both the House and Senate bills dealing with the Federal Trade Commission (or Interstate Trade Commission, as it was called in the House) had provisions enabling the Commission to order annual and special reports, but neither mentioned answers to specific questions. The House Committee Report on the original House version of the Act stated:
17
'The commission, under this section, (later 6(b)) may also require such special reports as it may deem advisable. By this means, if the ordinary data furnished by a corporation does not adequately disclose its organization, financial condition, business practices, or relation to other corporations, there can be obtained by a special report such additional information as the commission may deem necessary.' H.R.Rep.No. 533, 63d Cong., 2d Sess. 4.
18
The phrase 'answers in writing to specific questions' first appeared in the Conference Report, but the report by the House Managers explaining the modifications of the House bill did not mention it (although it discussed some other changes in the annual and special report provisions of the House bill). H.R.Rep.No. 1142, 63d Cong., 2d Sess. Similarly, the explanation of the Conference Report by the Senate Managers in debate makes it clear that the changes made in conference were of the nature of new, clarifying phraseology (with two exceptions not relevant here). 51 Cong.Rec. 14768—14769. If the conference had intended to give the Commission a separate, new power which was not included in either the House or Senate bill, surely there would be some mention of it in the reports by the managers.
19
Finally, it should be noted that a construction of the statute which empowers the Commission to particularize its requests for annual and special reports with specific questions will tend to avoid objections of vagueness. The requests directed to petitioner which were not particularized—items 1(h); 3(j), (k); 5(j), (k); 6(j); 7(j); 8(j); and 11 (a)—(1) of the first order; and item 5 of the seventh order—were struck down by the District Court as unenforceable. Such general requests for reports without specificity place the reporting company in a difficult position, leading to expensive and time-consuming litigation as well as frustrating the Commission's attempt to obtain information.
IV.
20
The District Court held that since the Commission orders were 'partially defective,' petitioner had a valid reason for challenging them, and therefore no forfeitures accrued. Petitioner supports this holding by asserting that many of the items included in the Commission's orders were held unenforceable by the District Court, and that under Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951), forfeiture should not be imposed for noncompliance with substantially defective orders. The Court of Appeals disagreed, holding that forfeiture had occurred and that the daily penalty began to run 30 days after the notice of default on the first set of the Commission's orders.12 We agree with the Court of Appeals and conclude that the single daily penalty runs until the date of our stay, February 7, 1961.
21
Petitioner's figures relative to the percentage of defective inquiries are based on analysis of all nine orders. However, the suit for forfeiture was brought only in respect to the two orders directed to petitioner, and we will restrict our consideration to the 134 inquiries included therein. Prior to the judgment 63 of these items remained unanswered. The trial judge struck 10 of them as unenforceable, leaving 53 which he ordered to be answered. However, whether one takes the above figures, or those of the petitioner asserting that only 37% of the questions were enforced by the trial court, or the Government's claim that two-thirds of the questions were valid and unanswered at the time of the suit, this case need not go off on a mathematical formula. The record fully supports the conclusion of the Court of Appeals that this is not 'a case involving single oversight or an honest mistake in a good faith attempt to comply with the Commission's order.' 285 F.2d, at 614. Nor, as the concurring opinion found, is it a case of 'such extensive invalidity that there is no longer an intelligible requirement' for a report. 285 F.2d, at 616.
22
Petitioner asserts that even partial invalidity of the order prevents the application of the forfeiture provision, arguing that the case is controlled by the rule in Bowman Dairy Co., supra. In that case the Court concluded that 'one should not be held in contempt under a subpoena that is part good and part bad.' 341 U.S., at 221, 71 S.Ct. at 679. But that rule cannot be considered apart from its facts. There the defendant could not appeal from the contested order, but was able to challenge it only by disobeying and appealing the contempt conviction. It was in review of that conviction—the defendant's first opportunity to review the validity of the order—that this Court held that its partial invalidity barred the punishment. Here petitioner might have delayed accrual of the forfeitures pending determination of the merits or obtained a separate judicial determination of the validity of the orders before the penalties began to accrue, as we point out infra. Rather than attempting such procedures it defined large parts of the orders. It cannot now be heard to complain because such defiance was in error.
23
Petitioner also contends that the trial court, after finding the orders partially invalid, should have stricken them and required the Commission to issue new ones if it wished to proceed with the inquiry. We agree with the trial court and the Court of Appeals that § 6(c) of the Administrative Procedure Act, 60 Stat. 241, 5 U.S.C. § 1005(c), 5 U.S.C.A. § 1005(c), authorized the procedure the court followed, i.e., ordering partial compliance. That section directs the court to sustain 'any such subpena or similar process or demand to the extent that it is found to be in accordance with law * * *.' Nor do we see any substance to the further contention that in directing partial compliance the trial judge treated those items found enforceable as subpoenas and therefore subject solely to contempt action. The various requests were severable, and the court's order was not in substitution of the Commission's orders but merely an enforcement of them, in accordance with § 9 of the F.T.C.A. authorizing the court to compel obedience to lawful Commission orders. Finally, petitioner argues that the case should have been remanded to the trial court for determination of whether the forfeiture should apply. However, once the Court of Appeals held that the default was within the forfeiture provision of § 10, its penalties accrued, and there was nothing remaining open for decision that required a remand to the District Court.
V.
24
Petitioner's final point is that to impose the forfeitures will deprive it of property without due process of law. This argument is based on the premise that the orders of the Commission were not judicially reviewable except at the risk of paying daily forfeitures accumulating throughout the period of noncompliance, including the period of judicial review. We need not consider this point at length for it appears that petitioner did not try to obtain judicial review prior to the commencement of this action by the Government, nor did petitioner seek a stay once the litigation had begun. This inaction was in part based upon petitioner's reliance on Federal Trade Comm. v. Claire Furnace Co., 274 U.S. 160, 47 S.Ct. 553, 71 L.Ed. 978 (1927). This reliance was misplaced. In that case an injunction was sought against the Commission restraining it from enforcing certain orders issued under the same section of the Act involved here. The Commission, however, had not issued any notice of default on the orders, as was done here, nor had the orders been forwarded to the Attorney General for enforcement. This Court properly held an injunction would not lie since the subjects of the reports could not suffer any injury or penalty at that point in the investigation. As Chief Justice Taft said, 'Until the Attorney General acts, the defendants cannot suffer, and, when he does act, they can promptly answer and have full opportunity to contest the legality of any prejudicial proceeding against them.' 274 U.S., at 174, 47 S.Ct. at 556.
25
Upon the commencement of the action by the Government, petitioner might have then sought a stay, as it did when the decision went against it in the Court of Appeals.13 Moreover, after the entry of the notices of default by the Commission, petitioner might have itself sought relief before the § 10 forfeitures began to accrue instead ofwaiting for the Attorney General to sue for thier collection. As was said in United States v. Morton Salt Co., 338 U.S. 632, 654, 70 ,S.Ct. 357, 369, 94 L.Ed. 401 (1950), 'we are not prepared to say that courts would be powerless' to act where such orders appear suspect and ruinous penalties would be sustained pending a good faith test of their validity. There the record did not present and the Court did not determine 'whether the Declaratory Judgments Act, 28 U.S.C.A. §§ 2201, 2202, the Administrative Procedure Act, or general equitable powers of the courts would afford a remedy if there were shown to be a wrong, or what the consequences would be if no chance is given for a test of reasonable objections to such an order.' Similarly, as this matter comes here now, the petitioner has pursued none of these remedies, and we could not therefore say that it had 'no chance' to prevent the running of the forfeiture pending a test of the validity of the orders. Cf. United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952); Natural Gas Pipeline Co. of America v. Slattery, 302 U.S. 300, 310, 58 S.Ct. 199, 204, 82 L.Ed. 276 (1937). We note, however, that the Declaratory Judgments Act, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, provides that 'In a case of actual controversy within its jurisdiction * * * any ocurt * * * may declare the rights * * * of any interested party seeking such declaration * * *.' This appears sufficient to meet petitioner's needs.
26
This Court cannot forgive statutory penalties one they legally attach and, finding no grounds upon which we can strike them down, the judgment of the Court of Appeals is affirmed.
27
Affirmed.
28
Mr. Justice BLACK, with whom Mr. Justice WHITTAKER and Mr. Justice STEWART concur, dissenting.
29
I dissent from the Court' holding (1) that petitioner's copies of census reports submitted to the Census Bureau are not privileged from production by § 9 of the Census Act, and (2) that for its refusal to produce these copies and to answer certain of many questions asked it by the Federal Trade Commission, petitioner must pay a penalty of $100 for each day since that refusal up to the time, many months later, when this Court granted a stay as to future penalties.
30
First. Section 9(a) of the Census Act, set out in note 5 of the Court's opinion, with exceptions not here material, provides that neither the Secretary of Commerce, nor any other officer or employee of the Department of Commerce or any bureau or agency thereof, may use the information furnished in census reports except for census purposes, make any publication of the data contained in such reports as coming from the establishment or individual reporting it, or permit any person except officers and employees of the Census Bureau to examine such reports. Moreover, in securing from petitioner the very reports, copies of which are here being held subject to subpoena by the Federal Trade Commission as a step towards government regulation of the petitioner, the form supplied by the Census Bureau told petitioner:
31
'Your report is confidential and only sworn census employees will have access to it. It cannot be used for purposes of taxation, investigation or regulation.'
32
The President of the United States backed up these promises of Congress and the Census Bureau with a proclamation in which he stated unequivocally: 'No person can be harmed in any way by furnishing the information required.' 46 Stat. 3011, 3012. I agree with the Seventh Circuit Court of Appeals that 'These assurances of confidentiality and protection constitute a pledge of good faith on the part of the Congress, the President and the Department of Commerce.' Federal Trade Comm. v. Dilger, 276 F.2d 739, 744.
33
It is true, as the Court emphasizes, that although the Census Act, the Census Bureau and the President promised that the Census Bureau would kdeep census reports purely confidential, neither the Act, the Bureau nor the President literally promised in so many words that other government agencies such as the Federal Trade Commission would never subpoena and use copies of those reports prepared and kept in reliance upon the Government's promise of secrecy. The Court holds that, because the Government did not so expressly bind itself with respect to actions it may take against copies of these reports through the Federal Trade Commission, the solemn and comprehensive promises of secrecy which it made need not be honored. But surely the Government's promises, fairly construed, do not indicate that the scope of the protection afforded against the use of census reports 'for purposes of taxation, investigation or regulation' is limited to the originals of those reports and to the Census Bureau alone. That Bureau does not itself even engage in the activities against which the use of these reports is protected. Quite plainly, the promised protection was against governmental 'taxation, investigation or regulation' generally, and, to protect the integrity of that promise, it is of course necessary that all of the particular arms of Government which are engaged in those activities be bound by the Government's pledges. Our Government should not, by picayunish haggling over the scope of its promise, permit one of its arms to do that which, by any fair construction, the Government has given its word that no arm will do. It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their Government. Cf. Rock Island, Arkansas & Louisiana R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188.
34
Second. The petitioner is being penalized $100 per day for its failure to produce copies of its census reports along with answers to certain of the voluminous questions propounded to it by the Federal Trade Commission. Many questions had already been answered prior to the time penalties began to run. The District Court has held that a very substantial number of the other questions asked need not be answered and I do not understand that this Court now holds otherwise. So far as the Commission's demand for production of the census reports is concerned, petitioner could quite reasonably have felt that it was under no obligation to comply because of the Government's numerous promises that these reports would be treated as confidential. Indeed, the very position taken by petitioner as to the privileged nature of its census reports was held to be correct in the Dilger case, decided just three weeks before the District Court decision in this case. All of this plainly shows, I think, that, with regard to some of the information sought, indeed a very substantial part of it, there was a serious, good-faith controversy concerning the Commission's power to compel disclosure. Under these circumstances I agree with the District Court's conclusion that these heavy statutory penalties should not have been imposed. It is practically the universal rule that laws imposing penalties of this kind should be strictly, not expansively, construed. Applying that standard, I am by no means sure that the penalty provisions of the statute upon which this judgment rests can be construed so as to justify the penalties here at all.
35
I would reverse this judgment.
1
'The commission shall also have power—
'(b) To require, by general or special orders, corporations engaged in commerce, excepting banks, and common carriers subject to the Act to regulate commerce, or any class of them, or any of them, respectively, to file with the commission in such form as the commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the commission may prescribe, and shall be filed with the commission within such reasonable period as the commission may prescribe, unless additional time be granted in any case by the commission.' 38 Stat. 721, 15 U.S.C. § 46(b), 15 U.S.C.A. § 46(b).
2
Section 9 of the Federal Trade Commission Act provides that '(u)pon the application of the Attorney General of the United States, at the request of the commission, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions (of this Act) or any order of the commission made in pursuance thereof.' 38 Stat. 722, 15 U.S.C. § 49, 15 U.S.C.A. § 49.
3
Section 10 of the Federal Trade Commission Act provides: 'That any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce documentary evidence, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission, shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $1,000 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment.
'Any person who shall willfully make, or cause to be made, any false entry or statement of fact in any report required to be made under (this Act,) or who shall willfully make, or cause to be made, any false entry in any account, record, or memorandum kept by any corporation subject to said sections, or who shall willfully neglect or fail to make, or to cause to be made, full, true, and correct entries in such accounts, records, or memoranda of all facts and transactions appertaining to the business of such corporation, or who shall willfully remove out of the jurisdiction of the United States, or willfully mutilate, alter, or by any other means falsify any documentary evidence of such corporation, or who shall willfully refuse to submit to the commission or to any of its authorized agents, for the purpose of inspection and taking copies, any documentary evidence of such corporation in his possession or within his control, shall be deemed guilty of an offense against the United States, and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not less than $1,000 nor more than $5,000, or to
imprisonment for a term of not more than three years, or to both such fine and imprisonment.
'If any corporation required by (this Act) to file any annual or special report shall fail so to do within the time fixed by the commission for filing the same, and such failure shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States brought in the district where the corporation has its principal office or in any district in which it shall do business. It shall be the duty of the various United States attorneys, under the direction of the Attorney General of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.
'Any officer or employee of the commission who shall make public any information obtained by the commission without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $5,000, or by imprisonment not exceeding one year, or by fine and imprisonment in the discretion of the court.' 38 Stat. 723, 15 U.S.C. § 50, 15 U.S.C.A. § 50.
4
Compare Federal Trade Comm. v. Dilger, 276 F.2d 739 (C.A.7th Cir. 1960), with United States v. St. Regis Paper Co., 285 F.2d 607 (C.A.2d Cir. 1960).
5
'Information as confidential; exception.
'(a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title—
'(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or
'(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or
'(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.' 13 U.S.C. § 9(a), 13 U.S.C.A. § 9(a).
6
'CONFIDENTIAL.—This report is required by Act of Congress, approved August 31, 1954 (13 U.S.C. 131 and 224 (13 U.S.C.A. §§ 131 and 224)). Your report is confidential and only sworn Census employees will have access to it. It cannot be used for purposes of taxation, investigation or regulation.'
7
Proclamation by President Hoover, November 22, 1929, 46 Stat. 3011, 3012.
8
'That neither said report nor any report of said investigation nor any part thereof shall be admitted as evidence or used for any purpose in any suit or action for damages growing out of any matter mentioned in said report or investigation.' 36 Stat. 351, 45 U.S.C. § 41, 45 U.S.C.A. § 41.
9
'(f) No report by any motor carrier of any accident arising in the course of the operations of such carrier, made pursuant to any requirement of the Commission, and no report by the Commission of any investigation of any such accident, shall be admitted as evidence, or used for any other purpose, in any suit or action for damages growing out of any matter mentioned in such report or investigation.' 49 U.S.C. § 320(f), 49 U.S.C.A. § 320(f).
10
E.g., United States v. O'Mara, 122 F.Supp. 399 (D.C.D.C.1954). Contra, O'Connell v. Olsen & Ugelstadt, 10 F.R.D. 142, 143 (E.D.N.D.Ohio 1949).
11
'Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment.' 18 U.S.C. § 1905, 18 U.S.C.A. § 1905.
12
The second set of orders was merely supplementary, so only a single daily penalty accrued.
13
Petitioner unsuccessfully moved in the Court of Appeals for a postponement of the effective date of the Commission's orders. Coming when it did, however, we cannot say that such denial was an abuse of discretion. Cf. Virginian R. Co. v. United States, 272 U.S. 658, 47 S.Ct. 222, 71 L.Ed. 463 (1926). Furthermore, a short while thereafter we stayed the accumulation of further penalties when the petition for writ of certiorari was granted. If petitioner had unsuccessfully sought a stay in the District Court, a different question might have been presented. That action, after final judgment, could have been reviewed both in the Court of Appeals and here.
| 45
|
368 U.S. 278
82 S.Ct. 275
7 L.Ed.2d 285
David Walton CRAMP, Jr., Appellant,v.BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA.
No. 72.
Argued Oct. 12 and 16, 1961.
Decided Dec. 11, 1961.
Tobias Simon and Howard W. Dixon, Miami, Fla., for appellant.
J. R. Wells, Orlando, Fla., for appellee.
Richard W. Ervin, Atty. Gen. of Florida, Tallahassee, Fla., amicus curiae.
Mr. Justice STEWART delivered the opinion of the Court.
1
A Florida statute requires each employee of the State or its subdivisions to execute a written oath in which he must swear that, among other things, he has never lent his 'aid, support, advice, counsel or influence to the Communist Party.'1 Failure to subscribe to this oath results under the law in the employee's immediate discharge.2
2
After the appellant had been employed for more than nine years as a public school teacher in Orange County, Florida, it was discovered in 1959 that he had never been required to execute this statutory oath.3 When requested to do so he refused. He then brought an action in the state circuit court asking for a judgment declaring the oath requirement unconstitutional, and for an injunction forbidding the appellee, the Orange County Board of Public Instruction, from requiring him to execute the oath and from discharging him for his failure to do so. The circuit court held the statute valid and denied the prayer for an injunction. The Supreme Court of Florida affirmed, 125 So.2d 554, and this is an appeal from the judgment of affirmance. Having doubt as to the jurisdiction of this Court, we postponed decision of that preliminary question until the hearing of the appeal on the merits. 366 U.S. 934, 81 S.Ct. 1660, 6 L.Ed.2d 846.
I.
3
In his complaint in the state circuit court Cramp alleged that 'he has, does and will support the Constitution of the United States and of the State of Florida; he is not a member of the Communist Party; that he has not, does not and will not lend aid, support, advice, counsel or influence to the Communist Party; he does not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; he is not a member of any organization or party which believes in or teaches directly or indirectly the overthrow of the Government of the United States or of Florida by force or violence.' He further alleged that he 'is a loyal American and does not decline to execute or subscribe to the aforesaid oath for fear of the penalties provided by law for a false oath.'
4
It is these sworn statements in the complaint which raise two related but separate questions as to our jurisdiction of this appeal. First, did the Florida Supreme Court rest its decision, at least alternatively, upon the ground that the appellant, because of these statements, lacked standing to attack the statutory oath? If so, we should have to consider the applicability of 'the settled rule that where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, our jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support the judgment.' Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158. Secondly, do these sworn statements of the appellant deprive him of standing to attack the state statute in this Court, irrespective of what the Florida court may have decided?
5
The Supreme Court of Florida ruled that 'because of the allegations of his own complaint the appellant teacher has unequivocally demonstrated that he has no standing to assault the subject statute on the grounds that it is a bill of attainder, or an ex post facto law.' 125 So.2d at 560. We may assume that this ruling by the state court would operate to foreclose our consideration of this appeal if the appellant had confined his attack upon the statute to the two grounds mentioned. But, in addition to asserting that the Florida statute constitutes an ex post facto law and a bill of attainder, the appellant has from the beginning also claimed that the statute is constitutionally invalid for two further and quite different reasons—that it impinges upon his constitutionally protected right of free speech and association, and that the language of the required oath is so vague and uncertain as to deny him due process of law. As we read the opinion of the Florida Supreme Court, both of these federal constitutional issues were decided upon their merits, without even implicit reliance upon any doctrine of state law.4
6
Whether the appellant has standing to attack the state statute in this Court is, however, a separate issue to which we must bring our independent judgment. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475. The controlling question is whether the appellant 'has sustained or is immediately in danger of sustaining some direct injury as the result of (the statute's) enforcement * * *.' Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078.
7
In the absence of the specific allegations in the complaint to which allusion has been made, there can be no doubt that enforcement of the state law would inflict a direct and serious injury upon the appellant. The statute unequivocally requires the appellant to execute the oath or suffer immediate discharge from public employment. See United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 91—92, 67 S.Ct. 556, 565, 91 L.Ed. 754; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472. The argument is made, however, that the self-exonerating sworn statements in the complaint conclusively show that this appellant could not possibly sustain injury by executing the oath, and that he consequently has undercut his standing to question the constitutional validity of the state law.
8
Whatever the merits of this argument, it has, we think, no application to the appellant's claim that the statutory oath is unconstitutionally vague. The vices inherent in an unconstitutionally vague statute—the risk of unfair prosecution and the potential deterrence of constitutionally protected conduct have been repeatedly pointed out in our decisions. See Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; Cline v. Frink Dairy Co., 274 U.S. 445, 465, 47 S.Ct. 681, 687, 71 L.Ed. 1146; Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Herndon v. Lowry, 301 U.S. 242, 258—259, 57 S.Ct. 732, 739, 81 L.Ed. 1066; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. See also Smith v. People of State of California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205. These are dangers to which all who are compelled to execute an unconstitutionally vague and indefinite oath may be exposed. Cf. Thornhill v. State of Alabama, 310 U.S. 88, 96—98, 60 S.Ct. 736, 742, 84 L.Ed. 1093.
9
There is nothing in the allegations of the complaint to indicate that the appellant will not be subjected to these hazards to the same degree as other public employees required to take the oath. The most that can be said of his having subscribed to the allegations in question is that he believes he could truthfully execute the oath, as he understands its language. But the very vice of which he complains is that the language of the oath is so vague and indefinite that others could with reason interpret it differently. He argues, in other words, that he could unconstitutionally be subjected to all the risks of a criminal prosecution despite the sworn allegations as to his past conduct which are contained in the complaint.5 We cannot say that the appellant lacks standing to attack this statutory oath as unconstitutionally vague simply because he now personally believes he could eventually prevail in the event he were prosecuted for perjury. Cf. Staub v. City of Baxley, 355 U.S. 313, 319, 78 S.Ct. 277, 280, 2 L.Ed.2d 302; Jones v. City of Opelika, 316 U.S. 584, 602, 62 S.Ct. 1231, 1241, 86 L.Ed. 1691, dissenting opinion adopted per curiam on rehearing, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290; Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 585, 75 L.Ed. 1264.
10
We conclude that the appellant is not without standing to attack the Florida statute upon the ground that it is so vague as to deprive him of liberty or property without due process of law, and we turn, therefore, to the merits of that claim.
II.
11
The Florida Supreme Court first considered the provisions of this legislative oath in State v. Diez, 97 So.2d 105, a case involving the validity of an indictment for perjury. There the court upheld the constitutionality of the legislation only upon finding it '* * * inherent in the law that when one takes the oath that he has not lent aid, advice, counsel and the like to the Communist Party, he is representing under oath that he has not done so knowingly.' 97 So.2d, at 110. In the present case the Florida court adhered to this construction of the statute, characterizing what had been said in Diez as a ruling that 'the element of scienter was implicit in each of the requirements of the statute.' 125 So.2d, at 557. We accept without question this view of the statute's meaning, as of course we must. This authoritative interpretation by the Florida Supreme Court 'puts these words in the statute as definitely as if it had been so amended by the legislature.' Winters v. People of State of New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840. See Kingsley Intern. Pictures Corp. v. Regents, 360 U.S. 684, at 688, 79 S.Ct. 1362, at 1365, 3 L.Ed.2d 1512; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675; Aero Mayflower Transit Co. v. Board of R.R. Commissioners, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99.
12
The issue to be decided, then, is whether a State can constitutionally compel those in its service to swear that they have never 'knowingly lent their aid, support, advice, counsel, or influence to the Communist Party.' More precisely, can Florida consistently with the Due Process Clause of the Fourteenth Amendment force an employee either to take such an oath, at the risk of subsequent prosecution for perjury, or face immediate dismissal from public service? The provision of the oath here in question, it is to be noted, says nothing of advocacy of violent overthrow of state or federal government. It says nothing of membership or affiliation with the Communist Party, past or present. The provision is completely lacking in these or any other terms susceptible of objective measurement. Those who take this oath must swear, rather, that they have not in the unending past ever knowingly lent their 'aid,' or 'support,' or 'advice,' or 'counsel' or 'influence' to the Communist Party. What do these phrases mean? In the not too distant past Communist Party candidates appeared regularly and legally on the ballot in many state and local elections. Elsewhere the Communist Party has on occasion endorsed or supported candidates nominated by others. Could one who had ever cast his vote for such a candidate safely subscribe to this legislative oath? Could a lawyer who had ever represented the Communist Party or its members swear with either confidence or honesty that he had never knowingly lent his 'counsel' to the Party? Could a journalist who had ever defended the constitutional rights of the Communist Party conscientiously take an oath that he had never lent the Party his 'support'? Indeed, could anyone honestly subscribe to this oath who had ever supported any cause with contemporaneous knowledge that the Communist Party also supported it?
13
The very absurdity of these possibilities brings into focus the extraordinary ambiguity of the statutory language. With such vagaries in mind, it is not unrealistic to suggest that the compulsion of this oath provision might weigh most heavily upon those whose conscientious scruples were the most sensitive. While it is perhaps fanciful to suppose that a perjury prosecution would ever be instituted for past conduct of the kind suggested, it requires no strain of the imagination to envision the possibility of prosecution for other types of equally guiltless knowing behaviour. It would be blinking reality not to acknowledge that there are some among us always ready to affix a Communist label upon those whose ideas they violently oppose. And experience teaches that prosecutors too are human.
14
We think this case demonstrably falls within the compass of those decisions of the Court which hold that '* * * a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. 'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888. 'Words which are vague and fluid * * * may be as much of a trap for the innocent as the ancient laws of Caligula.' United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200. 'In the light of our decisions, it appears upon a mere inspection that these general words and phrases are so vague and indefinite that any penalty prescribed for their violation constitutes a denial of due process of law. It is not the penalty itself that is invalid, but the exaction of obedience to a rule or standard that is so vague and indefinite as to be really no rule or standard at all.' Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 243, 52 S.Ct. 559, 568, 76 L.Ed. 1062.
15
The vice of unconstitutional vagueness is further aggravated where, as here, the statute in question operates to inhibit the exercise of individual freedoms affirmatively protected by the Constitution. As we said in Smith v. People of State of California, '* * * stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.' 361 U.S. 147, at 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205. 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.' Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117. See also Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840.
16
As in Wieman v. Updegraff, we are not concerned here with the question 'whether an abstract right to public employment exists.' 344 U.S. 183, at 192, 73 S.Ct. 215, at 219, 97 L.Ed. 216. Nor do we question the power of a State to safeguard the public service from disloyalty. Cf. Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 992; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472. It is enough for the present case to reaffirm 'that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.' Wieman v. Updegraff, supra, 344 U.S. at 192, 73 S.Ct. at 219. 'The fact * * * that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution.' Torcaso v. Watkins, 367 U.S. 488, at 495—496, 81 S.Ct. 1680, at 1684, 6 L.Ed.2d 982.
17
Reversed.
18
Mr. Justice BLACK and Mr. Justice DOUGLAS join the Court's judgment and opinion, but also adhere to the view expressed in their dissents in Adler v. Board of Education, 342 U.S. 485, 496, 508, 72 S.Ct. 380, 392, 96 L.Ed. 517; Garner v. Los Angeles Board, 341 U.S. 716, 730, 731, 71 S.Ct. 909, 917, 95 L.Ed. 1317; Barenblatt v. United States, 360 U.S. 109, 134, 79 S.Ct. 1081, 1097, 3 L.Ed.2d 1115; and to their concurrences in Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216.
1
The statute in its entirety provides as follows:
'All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school boards and districts of the free public school system of the state or counties, or institutions of higher learning and all candidates for public office, are hereby required to take an oath before any person duly authorized to take acknowledgments of instruments for public record in the state in the following form:
'I, .........., a citizen of the State of Florida and of the United States of America, and being employed by or an officer of .......... and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida; that I am not a member of the Communist Party; that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party; that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence.
'And said oath shall be filed with the records of the governing official or employing governmental agency prior to the approval of any voucher for the payment of salary, expenses, or other compensation.' Fla.Stat. § 876.05, F.S.A. (Italics added.)
The Supreme Court of Florida has construed the portion of the statutory oath printed in italics as follows: 'We think the pertinent clause, despite its ungrammatical construction was meant to apply retrospectively and that it should be read as if it had been written 'I have not lent and will not lend' * * *.' State v. Diez, 97 So.2d 105, 109.
2
'If any person required by §§ 876.05—876.10 to take the oath herein provided for fails to execute the same, the governing authority under which such person is employed shall cause said person to be immediately discharged, and his name removed from the payroll, and such person shall not be permitted to receive any payment as an employee or as an officer where he or she was serving.' Fla.Stat. § 876.06, F.S.A. See also Fla.Stat. § 876.08, F.S.A., which provides that: '(a)ny governing authority or person, under whom any employee is serving or by whom employed who shall knowingly or carelessly permit any such employee to continue in employment after failing to comply with the provisions of §§ 876.05—876.10' shall be subject to fine, imprisonment, or both.
3
The statute requiring execution of the oath was enacted in 1949 Laws of Florida 1949, c. 25046.
4
The Florida Supreme Court disposed of the claimed violation of the right of free speech and association in the following language:
'It has long been recognized that the First Amendment freedoms are not absolutes in and of themselves. When they are asserted as a barrier to government action we are confronted by the necessity of balancing the asserted private right against the alleged public interest. The private right will certainly not be lightly regarded. However, an indirect adverse effect on the asserted right of the individual will not preclude the exercise of governmental power when the power is shown to exist and its assertion is necessitated by the exigencies of the public wellbeing. Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.
'As we have pointed out in other parts of this opinion, the failure to take the required oath does not work an adjudication of guilt nor does it burden the employee with the responsibility of proving innocence against an assertion of guilt. Statutes of this type have been consistently sustained on the theory that they constitute merely a stipulation of qualifications or disqualifications for public employment. The statute contains no prohibition against the right of a citizen to speak out or to assemble peaceably. It merely provides that when one speaks out to advocate the violent overthrow of the government of the United States, or assembles for that purpose, he cannot simultaneously work for and draw compensation from the government he seeks to overthrow.' 125 So.2d, at 558—559.
The court disposed of the claim that the oath requirement was unconstitutionally vague as follows:
'Certainly the instant statute is perfectly clear in its requirements. There could be no doubt in the minds of anyone who can read English as to the requirements of the statute and the effect of a failure to comply. Adler v. Board of Education, supra.' 125 So.2d, at 558.
5
'If any person required by the provisions of §§ 876.05 876.10 to execute the oath herein required executes such oath, and it is subsequently proven that at the time of the execution of said oath said individual was guilty of making a false statement in said oath, he shall be guilty of perjury, and shall be prosecuted and punished for the crime of perjury in the event of conviction.' Fla.Stat. § 876.10, F.S.A.
| 23
|
368 U.S. 337
82 S.Ct. 353
7 L.Ed.2d 326
Grover D. TURNBOW and Ruth H. Turnbow, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE.
No. 60.
Argued Nov. 15 and 16, 1961.
Decided Dec. 18, 1961.
Francis N. Marshall, San Francisco, Cal., for the petitioners.
Wayne G. Barnett, Washington, D.C., for the respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
This case involves and turns on the proper interpretation and interaction of §§ 112(g)(1)(B), 112(b)(3) and 112(c)(1) of the Internal Revenue Code of 1939.1 Specifically the question presented is whether, in the absence of a 'reorganization,' as that term is defined in § 112(g)(1)(B) and used in § 112(b)(3), the gain on an exchange of stock for stock plus cash is to be recognized in full, or, because of the provisions of § 112(c)(1), is to be recognized only to the extent of the cash.
2
The facts are simple and undisputed. Petitioner2 owned all of the 5,000 shares of outstanding stock of International Dairy Supply Company ('International'), a Nevada corporation. In 1952, petitioner transferred all of the International stock to Foremost Dairies, Inc. ('Foremost'), a New York corporation, in exchange for 82,375 shares (a minor percentage) of Foremost's common (voting) stock of the fair market value of $15 per share or $1,235,625 plus cash in the amount of $3,000,000. Petitioner's basis in the International stock was $50,000, and his expenses in connection with the transfer were $21,933.06. Petitioner therefore received for his International stock property and money of a value exceeding his basis and expenses by $4,163,691.94.
3
In his income tax return for 1952, petitioner treated his gain as recognizable only to the extent of the cash he received. The Commissioner concluded that the whole of the gain was recognizable and accordingly proposed a deficiency. On the Taxpayer's petition for redetermination, the Tax Court, following its earlier decision in Bonham v. Commissioner, 33 B.T.A. 1100, 1104,3 and the opinion of the Seventh Circuit in Howard v. Commissioner of Internal Revenue, 238 F.2d 943, 948,4 held that the gain was recognizable only to the extent of the cash. 32 T.C. 646. On the Commissioner's appeal, the Ninth Circuit disagreed with the Tax Court and with the Seventh Circuit's decision in the Howard case, supra, and reversed. 286 F.2d 669. To resolve this conflict, on a matter of importance to the proper interpretation and uniform application of the Internal Revenue laws, we granted certiorari. 366 U.S. 923, 81 S.Ct. 1349, 6 L.Ed.2d 383.
4
Because of the arbitrary and technical character, and of the somewhat 'hodgepodge' form, of the statutes involved, the interpretation problem prosented is highly complicated; and although both parties rely upon the 'plain words' of these statutes, they arrive at diametrically opposed conclusions. That plausible arguments can be and have been made in support of each conclusion must be admitted; and, as might be expected, they have hardly lightened our inescapable burden of decision.
5
The starting point of our analysis must be the 'General rule' stated in § 112(a). It provides: 'General rule. Upon the sale or exchange of property the entire amount of the gain or loss * * * shall be recognized, except as hereinafter provided in this section.'
6
Various exceptions, deaing with exchanges solely in kind, are stated in subsections (b)(1) through (b)(6).5 The exception claimed to be relevant here is contained in subsection (b)(3). It provides:
7
'Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.'
8
By definition, contained in § 112(g)(1)(B), the term 'reorganization' means 'the acquisition by one corporation, in exchange solely for all or a part of its voting stock, of at least 80 per centum of the * * * stock of another corporation.'6 (Emphasis added.) This type of reorganization is commonly called a '(B) reorganization.'
9
There is no dispute between the parties about the fact that the transaction involved was not a 'reorganization,' as defined in § 112(g)(1)(B), because 'the acquisition by' Foremost was not 'in exchange solely for * * * its voting stock,' but was partly for such stock and partly for cash. Helvering v. Southwest Consolidated Corp., 315 U.S. 194, 62 S.Ct. 546, 86 L.Ed. 789. Nor is there any dispute that the transaction was not actually within the terms of § 112(b)(3), because the exchange was not of 'stock * * * in * * * a party to a reorganization,' 'in pursuance of (a) plan of reorganization,' nor 'for stock * * * in another corporation (which was) a party to the reorganization.'
10
But petitioner contends that § 112(c)(1) authorizes the indulging of assumptions, contrary to the actual facts, hypothetically to supply the missing elements that are necessary to make the exchange a 'reorganization,' as defined in § 112(g)(1)(B) and as used in § 112(b)(3), and the case turns on whether that is so. Section 112(c)(1) provides:
11
'Gains from exchanges not solely in kind. (1) If an exchange would be within the provisions of subsection (b)(1), (2), (3), or (5), or within the provisions of subsection (1), of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph or by subsection (l) to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property.'
12
Centering upon this section, and upon the Seventh Circuit's interpretation of it in the Howard case, supra,7 petitioner argues that 'if it were not for the fact that the property (he) received in (the) exchange' consisted not only of voting stock—'property permitted (by § 112(b)(3)) to be received (if in a corporation which is a party to a reorganization) without the recognition of gain'—but also of cash, the exchange would have been a 'reorganization,' as defined in § 112(g)(1)(B), because, in that case, 'the acquisition by' Foremost would have been 'in exchange solely for * * * its voting stock'; and the exchange also would have been within the terms of § 112(b)(3) because, in that case, the exchange would have been of 'stock * * * in * * * a party to a reorganization,' 'in pursuance of (a) plan of reorganization,' and 'for stock * * * in another corporation (which was) a party to the reorganization.' Petitioner then argues that inasmuch as his transaction would have been a 'reorganization,' as defined in § 112(g)(1)(B) and used in § 112(b)(3), and hence 'would (have been) within the provisions of subsection (b) * * * (3),' 'if it were not for the fact that the property (he) received' consisted 'not only of' voting stock 'but also of * * * money,' § 112(c)(1) authorizes the assumption, as respects the Foremost stock he received, that the exchange was a 'reorganization,' as defined in § 112(g)(1)(B) and used in § 112(b)(3), and hence precludes recognition of his gain 'in excess of the * * * money' he received.
13
But we cannot agree that § 112(c)(1) authorizes the assumption, contrary to the actual facts, of a 'reorganization,' as defined in § 112(g)(1)(B) and used in § 112(b)(3). To indulge such an assumption would actually be to permit the negation of Congress' carefully composed definition and use of 'reorganization' in those subsections, and to permit nonrecognition of gains on what are, in reality, only sales, the full gain from which is immediately recognized and taxed under the general rule of § 112(a). To the contrary, we think that an actual 'reorganization,' as defined in § 112(g)(1) and used in § 112(b)(3), must exist before § 112(c)(1) can apply thereto. We are also agreed that § 112(c)(1) can apply only if the exchange actually consists both of 'property permitted by (subsection (b)(1), (2), (3), or (5), or subsection (l) of § 112) * * * to be received without the recognition of gain' and 'other property or money.' And we think it is clear that the 'property permitted by (§ 112(b)(3)) * * * to be received without the recognition of gain' is 'stock or securities in * * * a party to a reorganization,' 'in pursuance of (a) plan of reorganization,' and 'for stock * * * in such corporation or in another corporation (which is) a party to the reorganization.' Since, as is admitted, none of the property involved in this exchange actually met that description, none of it was 'property permitted by (§ 112(b)(3)) * * * to be received without the recognition of gain,' and therefore § 112(c)(1) does not apply to postpone recognition of petitioner's gain from the Foremost stock.8
14
This, of course, is not to say that § 112(c)(1) is without purpose or function. It is to say only that it does not apply unless some part, at least, of the property exchanged actually meets the particular description contained in the applicable section or subsection of the Code. But, inasmuch as § 112(g) (1)(B) defines 'reorganization' to mean 'the acquisition by one corporation, in exchange solely for all or a part of its voting stock, of at least 80 per centum of the * * * stock of another corporation,' an exchange of stock and cash—approximately 30 per centum in stock and 70 per centum in cash—for 'at least 80 per centum of the * * * stock of another corporation' cannot be a 'reorganization,' as defined in § 112(g)(1)(B), nor hence of 'stock * * * in * * * a party to a reorganization' as required by § 112(b)(3), and thus § 112(c)(1) cannot be applicable to petitioner's transaction. That holding determines this case and is all we decide.
15
Collaterally, petitioner argues that tax 'loopholes' will be opened under other sections of the Code unless his interpretation is adopted. The Commissioner answers that 'loopholes' will be opened under the sections involved and other sections only if petitioner's interpretation is adopted. Inasmuch as what we have said decides the case, we have no need or occasion to follow the parties into, or to decide, collateral questions.
16
Affirmed.
17
Mr. Justice HARLAN concurs in the result.
1
Unless otherwise stated, all references to Code sections are to the Internal Revenue Code of 1939 (26 U.S.C., 1952 ed.), 26 U.S.C.A.
2
Grover D. Turnbow will be referred to as though he were the sole petitioner, his wife being a party only because a joint return was filed.
3
The Tax Court concluded 'that but for the cash received by petitioner * * * the exchange would have met the 'solely' requirement of section 112(g)(1) (B) and fallen within section 112(b)(3). Howard v. Commissioner, supra at 948. Therefore, under section 112(c)(1) the gain to petitioner may not be recognized in an amount in excess of (the cash received).' 32 T.C., at 652—653.
4
In the Howard case, supra, the acquiring corporation obtained 80.19% of the stock of the acquired corporation by transferring to the holders, including petitioners, a part of its voting stock in exchange for their stock in the acquired corporation, and acquired the remaining 19.81% of the acquired corporation's stock from other holders for an agreed price in cash. As stated, petitioners received only stock and no cash. The Commissioner determined that the gain realized by petitioners on their exchange solely of stock for stock should be recognized under the general rule of § 112(a) of the Code. The Seventh Circuit, following this Court's decision in Helvering v. Southwest Consolidated Corp., 315 U.S. 194, 62 S.Ct. 546, 86 L.Ed. 789, held 'that because of the cash payment, the transaction in question fails to meet the 'solely' requirement of § 112(g)(1)(B) of the 1939 Code. Hence it does not fall within the ambit of § 112(b)(3).' 238 F.2d at 947. But, turning to and relying on § 112(c)(1), it also held that 'but for the cash received (by others than petitioners) is exchange for 19.81% of the common stock of Binkley, the transaction would have met the 'solely' requirement of § 112(g)(1)(B) and fallen within the scope of § 112(b)(3). To the extent that 'boot' was received, gain would be recognized under our interpretation of the application of § 112(c)(1). However, no cash was received by the taxpayers in question, and as a consequence thereof, no gain at the time of the transaction ever arose.' 238 F.2d at 948.
5
The various exceptions, respecting exchanges solely in kind, contemplated by § 112(b), are the following:
§ 112(b)(1): The exchange of tangible property, held for productive use or investment, 'solely' for property ' of a like kind.'
§ 112(b)(2): The exchange of stock 'solely' for stock in the same corporation.
§ 112(b)(3): The exchange of stock in a party to a 'reorganization,' as defined in § 112(g)(1), 'solely' for stock or securities in the same corporation or in another corporation which is a party to the reorganization.
§ 112(b)(4): The exchange by a corporation, a party to a reorganization, of 'property,' in pursuance of the plan of reorganization, 'solely' for stock or securities in another corporation which is a party to the reorganization.
§ 112(b)(5): The transfer of property to a controlled corporation in exchange 'solely' for stock or securities of that corporation.
§ 112(b)(6): The receipt by a corporation of property in complete liquidation of another corporation.
See also § 112(l) which provides a similar exception in respect to: The exchange of stock or securities 'solely' for stock or securities of a successor corporation pursuant to a court-approved plan in debtor or insolvency proceedings.
6
Section 112(g)(1) provides:
'(g) Definition of reorganization. As used in this section * * *—
'(1) The term 'reorganization' means (A) a statutory merger or consolidation, or (B) the acquisition by one corporation, in exchange solely for all or a part of its voting stock, of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of another corporation, or (C) the acquisition by one corporation, in exchange solely for all or a part of its voting stock, of substantially all the properties of another corporation, but in determining whether the exchange is solely for voting stock the assumption by the acquiring corporation of a liability of the other, or the fact that property acquired is subject to a liability, shall be disregarded, or (D) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its shareholders or both are in control of the corporation to which the assets are transferred, or (E) a recapitalization, or (F) a mere change in identity, form, or place of organization, however effected.'
7
See note 4.
8
The legislative history, much of which is set forth in the opinion of the Court of Appeals, though tending to support our decision, is inconclusive, and no more can fairly be said of the Commissioner's Regulations. See Treas.Reg. 118, §§ 39.112(c)—1(e), 39.112(g)—4, 39.112(g)—1(c).
| 1112
|
368 U.S. 346
82 S.Ct. 282
7 L.Ed.2d 332
Samuel BAILEY et al.,v.Joe T. PATTERSON et al.
No. ____.
Decided Dec. 18, 1961.
Constance Baker Motley, Jack Greenberg, James M. Nabrit III and R. Jess Brown, for movants.
Joe T. Patterson, Atty. Gen. of Mississippi, Charles Clark and Peter M. Stockett, Special Asst. Attys. Gen., and Dugas Shands and Edward L. Cates, Asst. Attys. Gen., for respondents Patterson and others.
Thomas H. Watkins, for respondents City of Jackson and others.
Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and Howard A. Glickstein, for the United States, as amicus curiae.
PER CURIAM.
1
This is a motion for an injunction to stay the prosecution of a number of criminal cases in the courts of Mississippi pending an appeal to this Court from the judgment of a three-judge Federal District Court. 199 F.Supp. 595. A federal injunction to stay state criminal proceedings is an extraordinary remedy. Cf. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. In addition to the considerations normally attending an application for such relief, a serious question of standing is presented on this motion, in that it appears that the movants themselves are not being prosecuted in the Mississippi courts. On the record before us the motion for a stay injunction pending appeal is denied.
2
Motion denied.
3
Mr. Justice BLACK and Mr. Justice FRANKFURTER concur in the denial of a stay solely on the ground that the three movants are the themselves being prosecuted or threatened with prosecutions in Mississippi and they therefore reach no other questions.
| 89
|
368 U.S. 297
82 S.Ct. 327
7 L.Ed.2d 299
Phil CAMPBELL, Commissioner of Agriculture of the State of Georgia et al., Appellants,v.William HUSSEY, Jr., et al.
No. 42.
Argued Nov. 14 and 15, 1961.
Decided Dec. 18, 1961.
Rehearing Denied Feb. 19, 1962.
See 368 U.S. 1005, 82 S.Ct. 596.
G. Hughel Harrison, Asst. Atty. Gen. of Georgia, Denmark Groover, Jr., Macon, Ga., for appellants.
Homer S. Durden, Jr., Swainsboro, Ga., for appellees.
Sherman L. Cohn of the Solicitor General's office for the United States as amicus curiae.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a suit brought by owners and operators of tobacco warehouses in Georgia to enjoin officials of Georgia from enforcing certain provisions of the Georgia Tobacco Identification Act. Ga.Laws 1960, No. 557, p. 214. A three-judge court was convened, 28 U.S.C. §§ 2281, 2284, 28 U.S.C.A. §§ 2281, 2284, and it granted the relief. 189 F.Supp. 54. The case is here by direct appeal.1 28 U.S.C.A. § 1253, 28 U.S.C.A. § 1253.
2
The provisions of the Georgia Act that are challenged concern type 14 flue-cured leaf tobacco. It is defined in § 1 of the Act as 'that flue-cured leaf tobacco grown in the traditional loose-leaf area which consists of the State(s) of Georgia, Florida, and Alabama.' By § 13(A) of the Act type 14 tobacco received in a warehouse for sale2 shall be marked with a 'white sheet ticket.'
3
Sales at these warehouses are sales within the competence of congress to regulate. As stated in Mulford v. Smith, 307 U.S. 38, 47, 59 S.Ct. 648, 652, 83 L.Ed. 1092: 'In Georgia nearly one hundred per cent. of the tobacco so sold is purchased by extrastate purchasers. In markets where tobacco is sold to both interstate and intrastate purchasers it is not known, when the grower places his tobacco on the warehouse floor for sale, whether it is destined for interestate or intrastate commerce. Regulation to be effective, must, and therefore may constitutionally, apply to all sales.'
4
Congress in 1935 enacted the Tobacco Inspection Act, 49 Stat. 731, 7 U.S.C. § 511, 7 U.S.C.A. § 511, and in its declaration of purpose, § 2, 7 U.S.C. § 511a, 7 U.S.C.A. § 511a, stated:
5
'* * * the classification of tobacco according to type, grade, and other characteristics affects the prices received therefor by producers; without uniform standards of classification and inspection the evaluation of tobacco is susceptible to speculation, manipulation, and control, and unreasonable fluctuations in prices and quality determinations occur which are detrimental to producers and persons handling tobacco in commerce; such fluctuations constitute a burden upon commerce and make the use of uniform standards of classification and inspection imperative for the protection of producers and others engaged in commerce and the public interest therein.' (Italics added.)
6
By § 511b the Secretary of Agriculture is authorized 'to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, which standards shall be the official standards of the United States * * *.' (Italics added.)
7
Detailed standards have been prescribed by the Secretary. As to the 'type' of tobacco, the regulations state: '* * * Tobacco which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or georgraphical nature which cannot be determined by an examination of the tobacco.' 7 C.F.R., 1961 Cum.Supp., § 29.1096. (Italics added.)
8
Type 14 is defined as 'That type of flue-cured tobacco commonly known as Southern Flue-cured or New Belt of Georgia, Florida, and Alabama, produced principally in the southern section of Georgia and to some extent in Florida and Alabama.' 7 C.F.R., 1961 Cum.Supp., § 29,1100. (Italics added.)
9
The regulations also provide that the classification of the tobacco by type be placed on a federal inspection certificate and announced at the time the lot is offered in the auction (7 C.F.R. § 29.80, 7 C.F.R., 1961 Cum.Supp., § 29.1144)—an identification made by a blue ticket.
10
The question is whether the federal scheme of regulation has left room for Georgia to identify type 14 tobacco with a white tag when it is grown in Georgia, Florida, or Alabama.
11
It is earnestly argued that there is no conflict between Georgia's regulation and the federal law, as all that Georgia requires is that type 14 tobacco, grown in Georgia, be labeled as such. In that connection it is pointed out that type 14 tobacco as defined by the federal regulations includes tobacco 'produced principally' in Georgia, Florida, and Alabama and that labeling it by its georgraphical origin merely supplements the federal regulation and does not conflict with it.
12
We do not have here the question whether Georgia's law conflicts with the federal law. Rather we have the question of pre-emption. Under the federal law there can be but one 'official' standard—one that is 'uniform' and that eliminates all confusion3 by classifying tobacco not by geographical origin but by its characteristics. In other words, our view is that Congress, in legislating concerning the types of tobacco sold at auction, preempted the field and left no room for any supplementary state regulation concerning those same types. As we have seen, the Federal Tobacco Inspection Act in § 2, 7 U.S.C. § 511a, 7 U.S.C.A. § 511a, says that 'uniform standards of classification and inspection' are 'imperative for the protection of producers and others engaged in commerce and the public interest therein.' The House Report No. 1102, 74th Cong., 1st Sess., reviewed at length the harm to growers that resulted from the absence of regulations governing the 'grades' of tobacco sold on the auction market. 'There are between 60 and 100 grades in a single type of tobacco, and it is not practical for a farmer to familiarize himself with the technical factors on which these grades are based * * *.' Id., p. 2. The need for 'a definite standard' of grading, id., p. 2, or of 'standard grades,' id., p. 4, was repeated over and again. The importance of a 'standard grade' was emphasized in the debates on the floor of the House. Congressman Hancock stated that this legislation provided that tobacco on the auction market 'would be inspected by competent judges of tobacco in Government employ and graded according to United States standards of quality * * *.' 79 Cong.Rec. 11870. Congressman Mitchell added that 'Standard grades would serve as a guide to farmers in classifying their tobacco for market.' Id., 11878. The Senate Report No. 1211, 74th Cong., 1st Sess., based its approval of the bill on a report made by the Department of Agriculture. After stating that the purpose of the bill was to provide 'uniform standards' for the protection of farmers, the report added: 'The bill would authorize the Secretary of Agriculture to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, and the standards so established would be the official standards of the United States for such purpose.' Id., p. 1.
13
The Act, as we have seen, adopts that view by making the 'type, grade, size, condition' given inspected tobacco 'the official standards of the United States.' § 3, 7 U.S.C. § 511b, 7 U.S.C.A. § 511b. The regulations are precise and unequivocal in saying what those 'official standards' are. Among other things they say, as already noted, that tobacco 'which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco.' 7 C.F.R., 1961 Cum.Supp., § 29.1096. Tobacco is includable in type 14, regardless of where it may have been grown, provided it meets the specifications of that type.
14
We have then a case where the federal law excludes local regulation, even though the latter does no more than supplement the former. Under the definition of types or grades of tobacco and the labeling which the Federal Government has adopted, complementary state regulation is as fatal as state regulations which conflict with the federal scheme. Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 346, 47 S.Ct. 383, 385, 71 L.Ed. 672; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447; H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 543, 69 S.Ct. 657, 667, 93 L.Ed. 865.
15
Affirmed.
16
Mr. Justice WHITTAKER concurs in the result.
17
Dissenting opinion of Mr. Justice BLACK, joined by Mr. Justice FRANKFURTER and Mr. Justice HARLAN, announced by Mr. Justice FRANKFURTER.
18
Acting under unchallenged authority granted him by the Federal Tobacco Inspection Act1 to classify tobacco into 'types' and 'grades' and to designate 'auction markets' at convenient points in 'type areas,' the Secretary of Agriculture has established a comprehensive tobacco classification system made up of some 27 different types of tobacco—based upon chemical qualities resulting from the geographical factors of soil and climate2—which are in turn broken down into some 170 different grades—based upon such visual factors as group, quality and color.3 The question in this case relates to one of those 27 types, Type 14 flue-cured tobacco, and has nothing whatever to do with the Secretary's grade classification regulations.
19
Type 14 flue-cured tobacco, as defined in the official Department of Agriculture regulations, is:
20
'That type of flue-cured tobacco commonly known as Southern Fluecured or New Belt of Georgia, Florida, and Alabama, produced principally in the southern section of Georgia and to some extent in Florida and Alabama.'4
21
While § 8 of the Federal Act requires tobacco sold at designated auction markets to bear a tag showing the Department of Agriculture's official grade, it contains no such requirement for a tag showing its official type.5 Because of this omission and the fact, established here by expert testimony, that during the last five years Type 14 'tobacco has had the reputation of being the best tobacco produced in the United States,' growers and speculators from areas outside Georgia, Florida and Alabama have taken advantage of the general similarity in appearance of all types of flue-cured tobacco in order to sell their tobacco on Georgia markets as Type 14. Acting on complaints that this practice constituted a fraud upon Georgia tobacco growers as well as upon buyers coming into the State, the Georgia Legislature passed a law requiring that warehousemen within the State place a tag on all tobacco sold within the State showing whether it is Type 14 tobacco or not.6 To accomplish this purpose the Georgia law established the following definition:
22
'Type 14 flue-cured leaf tobacco as used herein shall mean that flue-cured leaf tobacco grown in the traditional loose-leaf area which consists of the State(s) of Georgia, Florida, and Alabama.'7
23
Despite the variations in their wordings, it is obvious that there is no conflict between this Georgia law and the regulation of the Department of Agriculture and that the definitions of Type 14 tobacco in the Georgia law and the federal regulation mean precisely the same thing—namely, that tobacco grown in Georgia, Florida and Alabama, and that tobacco only, can be classified as Type 14. Whatever doubt might otherwise have existed on this score is completely dispelled by the record in this case. For the parties to this lawsuit, who have lived under and can be presumed to be familiar with the Department of Agriculture's regulation, themselves stipulated that the Federal Government had 'designated as Type 14 tobacco only flue-cured tobacco grown in Georgia, Florida, and Alabama.' Two responsible Department of Agriculture officials unequivocally supported the correctness of this stipulation—one testifying that Type 14 was a classification according to 'geographical origin' and the other, the then Director of the Tobacco Division of the Commodity Stabilization Service,8 testifying that only three things went in the Department's Type 14 definition, 'geography, soil and climate.' There was also in evidence the 1959 official map of the Department showing, as has every other Department map since passage of the Act,9 that all Type 14 flue-cured tobacco is grown well within the borders of Georgia, Florida and Alabama and that the other 'type areas' in which flue-cured tobacco is grown do not even approach the plainly defined limits of the Type 14 area.10 That the Department of Agriculture did not regard the Georgia law attacked here as inconsistent with its regulations is further, and specifically, shown by the fact that after passage of the Georgia law, the Department itself issued a regulation, 6 C.F.R., 1961 Cum.Supp., § 464.1211(b)—which the record shows was designed to protect Florida markets precisely as the Georgia law protects Georgia markets—approving the Georgia definition by also requiring identifying colored tags for 'all tobacco * * * offered for sale at auction which is determined to have been produced in Georgia, Florida, or Alabama.' Thus it is clear beyond dispute, as the Department's map and regulation recognized, that neither the Georgia nor the Department definitions of Type 14 conflict with the requirement of Department regulation § 29.1096 that tobacco with the 'same characteristics * * * shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination,' because there are geographical factors of soil and climate in Georgia, Alabama, and Florida resulting in distinct 'characteristics' which are determinable by chemical examination.
24
The Court is therefore compelled to decide this case, as to me it apparently does, on the premise that the Georgia definition of Type 14 tobacco is not in conflict with, but rather is precisely the same as, the federal definition. Consequently, the Court must accept as an undoubted fact that the full effect of the Georgia law is simply to assure that bidders at Georgia auction markets located in the Type 14 area will be able to distinguish between officially classified Type 14 tobacco, grown only in Georgia, Florida and Alabama, and other types of tobacco grown in other States. Since the conceded basic purpose of the Federal Act itself was to assure that tobacco growers and buyers would have as much information as possible about the commercial qualities of tobacco sold on auction markets, the Court must also admit that this Georgia law is designed to and does help to effectuate the Federal Act and to secure all of the benefits of that Act's official tobacco type classifications. At least as early in the history of this country as 1619, when Virginia passed its first tobacco inspection act, the States have sought to protect honest sellers of tobacco from those who were willing for a profit to damage the integrity of the product.11 Yet the Court now holds that Congress, by passing the Federal Tobacco Inspection Act, intended to cover the entire field of tobacco regulation, even to the extent of compelling States to abandon historic laws that are not only completely in harmony with federal type classifications, but are actually necessary to give them full effect.
25
In so holding it seems to me that the Court departs drastically from its longcontinued practice of not striking down state laws as unconstitutional except where such decisions are compelled by considerations which are manifest and clear after careful study and analysis of the issues involved. Here the Court's opinion presents not so much as one fact which indicates that Congress actually intended by the passage of the Federal Act to preclude the States from passing laws which require only that warehousemen place a label on each lot of tobacco offered for sale truthfully showing its official federal type. Indeed, the Court even cites two prior cases in which this Court, in dealing with this very same Federal Act, has explicitly recognized that there is no basis whatever in the Act's language, history or purpose to justify a finding of a congressional intent to pre-empt merely complementary state legislation. In Townsend v. Yeomans,12 Mr. Chief Justice Hughes, after a full canvass of the language, history and purpose of the Federal Act and of tobacco inspection laws generally, rejected for the Court the contention that this Act precluded a Georgia law regulating the charges of warehousemen operating under the Act, pointing out that the federal law 'had a limited objective,' and going on to say:
26
'Instead of frustrating the operation of such state laws, the provisions of the act expressly afforded and emphasized the opportunity for cooperation with the states in protecting the farmers' interests. In this view we find no ground for the contention that Congress has taken possession of the field of regulation to the exclusion of state laws which do not conflict with its own requirements.'13
27
This statement was reiterated and buttressed when, two years later, the Court was called upon to pass on the constitutionality of the Tobacco Inspection Act in Currin v. Wallace.14 Mr. Chief Justice Hughes, again speaking for the Court, expressly adhered to the view the Court had earlier taken of the Act:
28
'But (in Townsend v. Yeomans) we found nothing in the federal Act which undertook to regulate the charges of warehousemen and hence we concluded that Congress had restricted its requirements and left the State free to deal with the matters not covered by the federal legislation and not inconsistent therewith.'15
29
I think it plain that the Court was entirely correct in the Townsend and Currin cases. There is not a word in the Tobacco Inspection Act nor anything that has been cited in its legislative history that indicates a clear and manifest purpose on the part of Congress to preclude the exercise by Georgia of the historic power of States to pass local legislation to protect the integrity of its tobacco on the market and to prevent the commission of fraud upon buyers who come to deal in tobacco within its borders. The purpose of the Federal Act, as plainly disclosed both in its language and legislative history, was to promote the dissemination of information on the tobacco market, not to restrict the availability of such information.16 The failure of the Federal Act itself to require the open disclosure of tobacco types as well as tobacco grades cannot by any stretch of the imagination be taken as evidence of a congressional intent that tobacco types should remain a secret on the market. For the Act itself plainly shows why that omission was made. Congress knew that the various types of tobacco were grown in geographically separate 'type areas' and further knew that under the marketing practices then being used in the tobacco industry tobacco was marketed in the 'type area' in which it was grown. Consequently, under the conditions then generally prevailing, there was no need to require the disclosure of tobacco types for the simple reason that no two types of tobacco were sold on the same market.17
30
The record in this case shows, however, that marketing practices in the tobacco industry have changed radically in recent years. An ever-increasing amount of tobacco is being taken from the type area in which it is grown into another type area for sale18—particularly into Georgia, where the higher prices which prevail on that market as a result of the commercially superior qualities of Type 14 tobacco constitute a powerful lure to growers and tobacco speculators who want to sell superficially similar tobacco of other types. This tremendous influx of unidentified commercially inferior tobacco threatens literally to destroy the Georgia market for Type 14 tobacco and rob the tobacco growers of that State of the value of their labor. By attempting to eliminate claimed unfairness and outright fraud in the sale of tobacco on the Georgia federal markets, the Georgia Act thus seeks to do no more than prevent a partial frustration through changing commercial practices of the very objective Congress itself sought to attain by the enactment of the Tobacco Inspection Act.
31
The whole structure of the Federal Act plainly shows, I think, that, far from precluding this sort of state cooperation in the effectuation of the federal purpose, Congress affirmatively intended and, as pointed out by Mr. Chief Justice Hughes in the Townsend and Currin cases, actually hoped for such cooperation. The Tobacco Inspection Act is not one that forces federal regulation on unwilling local communities. Before the Secretary of Agriculture can designate 'auction markets' upon which compliance with the provisions of the Act is mandatory, § 5 of the Act requires that a referendum be conducted and the consent of two-thirds of the growers who used the market in the previous season be obtained. That section also expressly denies the Secretary power to 'close any market' or 'to prevent transactions in tobacco at markets not designated' by him, although it does give him power to provide, on a purely voluntary basis, federal inspection and grading to those growers selling on such markets who wish to avail themselves of those services. Section 6 of the Federal Act expressly recognizes the continued existence of state functions and powers by providing that the Secretary of Agriculture may make agreements with state agencies covering employment of the inspectors, samplers and weighers who perform the tasks of inspecting, grading and typing tobacco, thus making it plain that even as to these most central features of the Federal Act Congress intended no sweeping exclusion of the States.
32
Insofar as the Court even bothers here to take a fresh look at the specific language and legislative history of the Federal Act, it does so, not for the purpose of re-evaluating the correctness of the understanding of the Act set forth in the Townsend and Currin cases, but solely for the purpose of showing that the Federal Act was designed to set up 'uniform standards of classification and inspection' for tobacco to be sold at federally designated warehouses—a fact which I certainly do not controvert and which, so far as I know, none of the parties to this lawsuit has controverted. The Court makes no attempt to relate this fact to the issue in this case and show just how this congressional purpose supports an inference that Congress intended to preclude the States from requiring that the 'uniform standards of classification' so established and applied by official federal inspection be disclosed on each lot of tobacco sold. Instead, the Court proceeds from the bare fact of congressional legislation to the conclusion of federal pre-emption by application of a mechanistic formula which operates independently of congressional intent. That formula, as stated by the Court, is that 'complementary state regulation is as fatal as state regulations which conflict with the federal scheme.' I know of no case in which this formula has previously been applied by this Court. Certainly, the three cases which it cites do not support its action here.
33
Missouri Pacific R. Co. v. Porter,19 the first case cited by the Court, did make the statement that state laws 'cannot be applied in coincidence with, as complementary to or as in opposition to, federal enactments which disclose the intention of Congress to enter a field of regulation that is within its jurisdiction.' But this statement was made only after the Court had discussed the congressional act involved there in great detail and found Congress to have concluded that 'no other regulation is necessary.'20 That the Court in Missouri Pacific did not intend to go outside of the facts there before it and lay down a rule of automatic pre-emption by 'coincidence' is plainly shown by the authorities relied upon to support its passing reference. The first case cited, Napier v. Atlantic Coast Line R. Co.,21 is typical. In Napier, Mr. Justice Brandeis, in his usual careful way, declared that in considering the question of pre-emption 'The intention of Congress to exclude States from exerting their police power must be clearly manifested * * *.'22 The Missouri Pacific case can therefore support pre-emption only upon the basis of congressional intent and does not lend the slightest support to the mechanistic pre-emption rule which the Court applies here.
34
The second case relied on by the Court for its mechanical formula is Rice v. Santa Fe Elevator Corp.23 The Santa Fe Elevator case, however, does not support the Court's mechanical formula any more than the Missouri Pacific case. On the very page cited by the Court, it was said:
35
'Congress legislated here in a field which the States have traditionally occupied. * * * So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'
36
More importantly, the Court did not in Santa Fe Elevator treat the question of pre-emption as one which could be settled by application of the rigid formula used here to strike down this Georgia law. Quite the contrary, recognizing that pre-emption 'is often a perplexing question' the Court analyzed the issue before it at great length and concluded that Congress intended to pre-empt the supplementary state regulation there involved only after demonstrating that the language of the Warehouse Act as amended, 7 U.S.C.A. § 241 et seq., 'the special and peculiar history' of the amendment to the Act, and the underlying purpose of the Act all manifested a clear congressional purpose to pre-empt all state action in the field. Far from supporting the mechanical formula used by the Court here to declare Georgia's law unconstitutional, Santa Fe Elevator stands as a clear refutation of that formula, and contains a very clear statement of the proper rule which before today has governed this Court's holdings on pre-emption—the rule that pre-emption of the historic police powers of the States can be found only where 'that was the clear and manifest purpose of Congress.' The final case relied upon by the Court is H. P. Hood & Sons v. Du Mond.24 But this was not a pre-emption case at all. There, a majority of the Court decided that a New York law burdened commerce in violation of the Commerce Clause. The Court's opinion did make a casual reference to 'decisions that coincidence is as fatal as conflict when Congress acts,' but it relied in no way upon this statement for its holding and the only case cited to support that proposition was one in which the Court held a State pre-empted by a federal statute only after carefully showing that Congress had intended to preclude state legislation of the kind there involved.25
37
Just a few weeks after the decision in H. P. Hood & Sons v. Du Mond, however, this Court did, in People of State of California v. Zook,26 specifically deal with the argument 'that when Congress has made specified activity unlawful, 'coincidence is as ineffective as opposition,' and State laws 'aiding' enforcement are invalid.' The Court there emphatically rejected the idea that identity of purpose between a federal and a state statute meant 'the automatic invalidity of State measures.' It treated coincidence as only one factor in the complicated pattern of facts relevant to the question of pre-emption, pointing out, in the words of Mr. Justice Holmes, that this is a question which 'must be answered by a judgment upon the particular case.'27 A dissent in the Zook case, written by Mr. Justice Burton and concurred in by Mr. Justice Douglas and Mr. Justice Jackson, took the position, apparently taken by the Court here, that, when Congress passes a law in the interstate commerce field and the State passes one consistent with it, 'coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.'28 That when Congress passes a law regulating interstate commerce, all state laws in any way touching on the subject are obliterated was nothing but a dissenting view before this case was decided today.
38
The correct test in determining whether a federal act results in pre-emption is that stated in Rice v. Santa Fe Elevator, which requires that 'the historic police powers of the States * * * not * * * be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'29 Measured by that test, the Georgia law here cannot be invalidated.
39
There can be no doubt that the power upon which this Georgia law was based is one of the powers historically exercised by the States. As pointed out before, the power to regulate tobacco in order to protect the integrity of the product was exercised by Virginia as early as 1619. Indeed, in the midst of a marketing crisis in 1666, Lord Baltimore proposed a law closely similar to the Georgia law here which would have required that all tobacco from his Colony be labeled 'Maryland' in order to distinguish it from Virginia tobacco, the only other type of tobacco then being grown in the Colonies.30 Even this Court, in times past, has recognized the historic powers of the States in this area. In Turner v. State of Maryland,31 the Court rejected the contention that the States are barred by the Commerce Clause from requiring that tobacco grown within their borders be labeled to indicate its origin, saying:
40
'The legislature of the state of Maryland, from the earlist history of the colony and since the formation of the state government, has made the inspection of tobacco raised in that state compulsory. That inspection has included many features, and has extended to the form, size, and weight of the packages containing tobacco, as well as to the quality of the article. Fixing the identity and weight of tobacco alleged to have been grown in the state, and thus preserving the reputation of the article in markets outside of the state, is a legitimate part of inspection laws, and the means prescribed therefor in the statutes in question naturally conduce to that end.' I do not question the doctrine that a purpose of Congress to preclude all state legislation can be implied if the history, purpose, language, and comprehensiveness of an act makes such a congressional purpose clear and manifest. But I do not think that such a purpose can properly be found through use of so mechanically compelling a formula as the Court uses here particularly when the result is to undercut a state policy of protecting tobacco growers and purchasers which has the experience in this country of almost three and a half centuries behind it.
1
Of the several infirmities which Georgia's law is alleged to have, only one was reached by the lower court, namely, the constitutionality of the law in light of the requirements of the Commerce Clause. The complaint also challenged the constitutionality of the law on the grounds that it violated both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Plainly the case was one to be heard by a three-judge court. See Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568.
2
The manner of sale is described in Townsend v. Yeomans, 301 U.S. 441, 445, 57 S.Ct. 842, 844, 81 L.Ed. 1210; Currin v. Wallace, 306 U.S. 1, 7—8, 59 S.Ct. 379, 383, 83 L.Ed. 441; American Tobacco Co. v. United States, 328 U.S. 781, 800, 66 S.Ct. 1125, 1134, 90 L.Ed. 1575.
3
The court below stated:
'The Georgia statute defines Type 14 tobacco on the basis of geographical origin and upon no other basis. If it is grown in Georgia, it would be Type 14 under the Georgia law and be given a white tag; while if it came from the other side of the Savannah River in South Carolina it would not be Type 14 and would be given a blue tag. * * *
'Both the purpose and effect of the Georgia enactment were to make a distinction at the markets, by the color tags, between tobacco grown in Georgia and that grown elsewhere. The effect was to create a wide disparity of price between the two groups of tobacco, the Carolina growers receiving a much lower amount. This resulted in losses of business to the plaintiff warehousemen.' 189 F.Supp. 54, 59.
1
49 Stat. 731, 7 U.S.C. §§ 511—511q, 7 U.S.C.A. §§ 511 511q.
2
See 7 C.F.R., 1961 Cum.Supp., § 29.1096. Under the Department of Agriculture's classification system, 'type' is a subdivision of 'class,' which is largely determined by the method used to cure the tobacco. See 7 C.F.R., 1961 Cum.Supp., § 29.1040.
3
7 C.F.R., 1961 Cum.Supp., § 29.1053.
4
C.F.R., 1961 Cum.Supp., § 29.1100.
5
While the two Department of Agriculture regulations cited by the Court, 7 C.F.R. § 29.80 and 7 C.F.R., 1961 Cum.Supp., § 29.1144, could arguably be interpreted to impose a federal requirement that type as well as grade be shown on each lot of tobacco sold, the record in this case plainly indicates that this is not the Department's interpretation of its own regulations. In the first place, every witness in this case who was called upon to describe the situation existing prior to 1960 stated unequivocally that the tobacco type did not appear on the government label attached to the tobacco at the time of sale. And the Department's own official said that this was not presently required.
6
The Georgia Tobacco Identification Act, Ga.Laws 1960, No. 557, p. 214.
7
§ 1.
8
The Commodity Stabilization Service and the Agricultural Marketing Service are the two branches of the Department of Agriculture most directly involved in the marketing of tobacco.
9
In addition the definition of Type 14 is exactly the same now as it was under the first Tobacco Inspection Act Regulations. See § 29.153 (vv) of the Rules and Regulations of the Secretary of Agriculture, Aug. 7, 1936.
10
It seems clear from this that the solicitude of the court below for Type 14 growers in South Carolina, as shown in note 3 of the Court's opinions, is entirely misplaced. The Department's official map, referred to above, shows plainly that all South Carolina flue-cured tobacco is Type 13.
11
Journal of the House of Burgesses (McIlwaine ed.), Laws, 1619, p. 11.
12
301 U.S. 441, 57 S.Ct. 842, 81 L.Ed. 1210.
13
Id., at 454, 57 S.Ct. at 848.
14
306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441.
15
Id., at 13, 59 S.Ct. at 386.
16
Section 9 of the Act, 7 U.S.C. § 511h, 7 U.S.C.A. § 511h, provides: 'The Secretary is authorized to collect, publish, and distribute, by telegraph, mail, or otherwise without cost to the grower, timely information on the market supply and demand, location, disposition, quality, condition, and market prices for tobacco.' That this section constituted an important part of the Act is shown by the statement of its sponsor, Representative Flannagan, in introducing his bill on the floor of the House of Representatives: 'Simply stated the bill has two objects: First, the grading of the growers' tobacco before sale by a competent grader in order to determine what grades the growers have to offer for sale, and second, furnishing the growers with a daily marketing news service so they will know what the different grades of tobacco are bringing on the other tobacco markets and thus put them in position to intelligently accept or reject a sale. Surely the growers are entitled to know what they are offering for sale the different grades of tobacco they have to offer—and the prices that the different grades are bringing from day to day upon the different tobacco markets. Deny them these rights and you deny them the opportunity to make a fair and honest sale.' 79 Cong.Rec. 11802.
17
Since the earliest days of the tobacco industry in this country, the marketing of the product has been almost exclusively on a purely local basis. See Wyckoff, Tobacco Regulation in Colonial Maryland, p. 62. That situation persisted substantially at least up to the year 1950. See Department of Agriculture Marketing Research Report No. 101, The Auction Marketing of Flue-cured Tobacco, p. 8.
18
The record shows that this practice, which seems to have begun around 1955, has been growing each year since. Thus, in 1959, more than 22,000,000 pounds of non-Type 14 Tobacco, representing some 17% of all the tobacco sold in Georgia that year, was brought into the State for sale to buyers on the implicit assumption that it was Georgia tobacco.
19
273 U.S. 341, 47 S.Ct. 383, 71 L.Ed. 672.
20
Id., at 346, 47 S.Ct. at 385.
21
272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432.
22
Id., at 611, 47 S.Ct. at 209.
23
331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447.
24
336 U.S. 525, 543, 69 S.Ct. 657, 667, 93 L.Ed. 865.
25
Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234.
26
336 U.S. 725, 729, 69 S.Ct. 841, 843, 13 L.Ed. 1005.
27
Id., at 731, 69 S.Ct. at 844. The quotation relied upon from Mr. Justice Holmes is from his opinion for the Court in Pennsylvania R. Co. v. Public Service Comm., 250 U.S. 566, 569, 40 S.Ct. 36, 37, 64 L.Ed. 1142. This statement by Mr. Justice Holmes is especially significant in view of the fact that the primary authority often relied upon for a mechanistic rule of pre-emption is an earlier statement of his in Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604, 35 S.Ct. 715, 717, 59 L.Ed. 1137. There, after holding the state statute involved unconstitutional as a burden on interstate commerce, he said: 'When Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.' In view of his later holding, it seems clear that the oft-repeated remark of Mr. Justice Holmes was intended to be nothing more than a judgment of the intent of Congress 'upon the particular case.' See also Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 783, 67 S.Ct. 1026, 1034, 91 L.Ed. 1234 (separate opinion of Mr. Justice Frankfurter).
28
336 U.S., at 752, 69 S.Ct. at 853. See n. 27, supra.
29
Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432; Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 346, 47 S.Ct. 383, 385, 71 L.Ed. 672; Kelly v. State of Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3; People of State of California v. Zook, 336 U.S. 725, 69 S.Ct. 841, 93 L.Ed. 1005; Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 442—443, 80 S.Ct. 813, 815, 4 L.Ed.2d 852. All these cases and many others that could be cited plainly show that this Court has consistently rejected the idea that every time Congress passes a law all state laws touching on the same subject are automatically destroyed. See also San Diego Building Trades Council Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, and the concurring opinion of Mr. Justice Harlan, joined by Mr. Justice Clark, Mr. Justice Whittaker and Mr. Justice Stewart, and cases cited therein.
30
Wyckoff, Tobacco Regulation in Colonial Maryland, p. 76. Contemporary Virginia legislation also sought to protect the reputation of Virginia tobacco in much the same manner. 2 Hening, Laws of Virginia, Act VIII, 1679; 3 Hening, Laws of Virginia, c. V, 1705; 4 Hening, Laws of Virginia, c. VI, 1726.
31
107 U.S. 38, 49, 2 S.Ct. 44, 53, 27 L.Ed. 370.
| 910
|
368 U.S. 318
82 S.Ct. 344
7 L.Ed.2d 312
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.OCHOA FERTILIZER CORPORATION et al.
No. 37.
Argued Nov. 16, 1961.
Decided Dec. 18, 1961.
Archibald Cox, Sol. Gen., Washington, D.C., for N.L.R.B.
No appearance for the respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The respondents, an employer and two labor organizations, waived the procedures for adjudgment of the allegations of an unfair labor practice complaint issued against them under the National Labor Relations Act, and agreed upon the form of a cease-and-desist order to be entered by the National Labor Relations Board against them.1 The complaint alleged that the employer violated § 8(a)(1), (2) and (3), 29 U.S.C.A. § 158(a)(1—3), and the labor organizations § 8(b)(1)(A) and (2), of the Act, as amended, by executing an maintaining a collective bargaining agreement which conditioned employment upon union membership, vested the respondent unions with exclusive control over hiring, and provided for the checkoff of union dues and fees. The prohibitions of the consent order were not limited to the relationship between the employer and the two labor organizations. The respondent employer was directed to refrain from performing, maintaining or giving effect to such an agreement with the respondent unions, 'or any other labor organization,' and from otherwise unlawfully encouraging membership in the respondent unions, 'or any other labor organization,' by discrimination as to hire, tenure, or terms or conditions of employment; and the respondent unions were directed to refrain from performing, maintaining, or giving effect to such an agreement with the respondent employer, 'or any other employer, over which the Board will assert jurisdiction,' and from otherwise causing or attempting to cause the respondent employer, 'or any other employer over which the Board will assert jurisdiction' to discharge, refuse to hire, or otherwise discriminate against any employee in violation of § 8(a)(3) of the Act.2
2
The respondents also agreed that 'any United States Court of Appeals for any appropriate circuit may on application by the Board, enter a decree enforcing the Order of the Board * * *,' and that 'Respondents waive all defenses to the entry of the decree * * *.' R. 29. The Board petitioned the Court of Appeals for the First Circuit for enforcement of the order pursuant to § 10(e) of the Act.3 The enforcement petition submitted the order in the form agreed upon and recited the terms of the settlement stipulation.
3
The Court of Appeals, sua sponte,4 and initially without filing an opinion giving reasons supporting its action, entered a decree which excised the phrases 'or any other labor organization' and 'or any other employer over which the Board will assert jurisdiction' wherever they appeared in the consent order and the compliance notices, and enforced the order as so modified. Subsequently, on the Board's second motion for reconsideration, the Court reconsidered its action in light of the opinion of the Court of Appeals for the Second Circuit in Labor Board v. Combined Century Theatres, Inc., 46 LRRMan. 2858. That case held that in the face of a like stipulation 'and in the absence of any exception to the order taken before the Board or the showing of any extraordinary circumstances, the Court will not consider respondents' objections.' The motion for rehearing was denied in an opinion covering the present case and six others in which the Court of Appeals had similarly modified orders entered by the Board. 283 F.2d 26.5 Because we believed the case presented an important question of authority of the Court of Appeals in the premises we granted certiorari. 365 U.S. 833, 81 S.Ct. 746, 5 L.Ed.2d 743.
4
The authority of the Court of Appeals to modify Board orders when the Board petitions for their enforcement derives from the provision of § 10(e) authorizing the court 'to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board.' However, the immediately following sentence of § 10(e) provides that 'No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.' At least when the Board has not 'patently traveled outside the orbit of its authority,' National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739,6 our cases have uniformly held that in the absence of a showing within the statutory exception of 'extraordinary circumstances' the failure or neglect of the respondent to urge an objection in the Board's proceedings forecloses judicial consideration of the objection in enforcement proceedings. Marshall Field & Co. v. National Labor Relations Board, 318 U.S. 253, 6o S.Ct. 585, 87 L.Ed. 744; May Department Stores Co. v. National Labor Relations Board, 326 U.S. 376, 386, n. 5, 66 S.Ct. 203, 209, 90 L.Ed. 145; National Labor Relations Board v. Cheney California Lumber Co., supra; National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 350, 73 S.Ct. 287, 290, 97 L.Ed. 377; National Labor Relations Board v. District 50, 355 U.S. 453, 463—464, 78 S.Ct. 386, 392, 2 L.Ed.2d 401. These cases involved contested proceedings before the Board, as did National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930, and Communications Workers v. National Labor Relations Board, 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896, upon which the Court of Appeals relied. The limitation of § 10(e) applies a fortiori to the consideration of an objection to enforcement made by a respondent who has consented to the terms of the order. See National Labor Relations Board v. Combined Century Theatres, Inc., supra.
5
We understand the opinion of the Court of Appeals to hold that the limitation of § 10(e) is inapplicable when the record contains no findings or facts supporting the order—that 'affirmative reasons must appear to warrant broad injunctions.' 283 F.2d, at 29—30. The Court noted that there were no such findings or facts in this record—not even a 'stipulation disclosing facts which warrant broad relief.' Id., at 31. The court reasoned that the limitation of § 10(e) was therefore no barrier to its sua sponte revision of the order and stated that 'We do not think that consent makes the difference.' Id., at 31. Contrary to the Court of Appeals, we think that consent makes a significant difference; it relieves the Board of the very necessity of making a supporting record. A decree rendered by consent 'is always affirmed, without considering the merits of the cause.' Nashville, Chattanooga & St. Louis R. Co. v. United States, 113 U.S. 261, 266, 5 S.Ct. 460, 462, 28 L.Ed. 971. There are not here applicable any of the exceptions, such as a claim of lack of actual consent, or of fraud in the procurement of the order, or of lack of federal jurisdiction. See Swift & Co. v. United States, 276 U.S. 311, 324, 48 S.Ct. 311, 314, 72 L.Ed. 587.
6
The judgment of the Court of Appeals is reversed and the case is remanded with directions that a judgment be entered which affirms and enforces the Board's order.
7
It is so ordered.
8
Reversed and remanded with directions.
9
Mr. Justice DOUGLAS dissents.
1
The complaint issued on amended charges filed by an individual denied employment. It issued in the name of the Regional Director for the 24th Region, Puerto Rico, acting on behalf of the General Counsel. The settlement agreement was reached following the issuance of the complaint. The respondents stipulated that they expressly waived 'a hearing, an Intermediate Report of a Trial Examiner, the filing of exceptions to such Intermediate Report, oral arguments before the Board, and all further and other proceedings to which (they) * * * may be entitled * * * under the Act or the Rules and Regulations of the Board.' R. 23. See 49 Stat. 453, as amended, 29 U.S.C. § 160(b), (c), 29 U.S.C.A. § 160(b, c); 29 CFR, 1961 Cum.Supp., §§ 101.9, 102.46.
2
The consent order also provided for the posting in English and in Spanish of agreed-upon forms of compliance notices.
3
Section 10(e), 49 Stat. 454, as amended, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e), is as follows:
'(e) Petition to court for enforcement of order; proceedings; review of judgment.
'The Board shall have power to petition any court of appeals of the United States, or if all the courts of appeals to which application may be made are in vacation, any district court of the United States, within any circuit or district, respectively, wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings, as provided in section 2112 of Title 28. Upon the filing of such petition, the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board. No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole 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 and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evidence to be taken before the Board, its member, agent, or agency, and to be made a part of the record. The Board may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive, and shall file its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the appropriate United States court of appeals if application was made to the district court as hereinabove provided, and by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of Title 28.'
4
The respondents honored their agreement not to contest the enforcement of the consent order both in the Court of Appeals and in this Court. Only the Board appeared by the Solicitor General in this Court to brief and argue the cause.
5
Two of the cases are presently pending in this Court on petition for writ of certiorari. National Labor Relations Board v. Las Vegas Sand & Gravel Corp., certiorari granted later and judgment reversed, 368 U.S. 400, 82 S.Ct. 430, 7 L.Ed.2d 380; National Labor Relations Board v. Local 476, Plumbers, certiorari granted later and judgment reversed, 368 U.S. 401, 82 S.Ct. 423, 7 L.Ed.2d 382.
6
The order here consented to would be within the Board's authority under appropriate circumstances. See, e.g., National Labor Relations Board v. Springfield Building & Construction Trades Council, 1 Cir., 262 F.2d 494, 498—499.
| 89
|
368 U.S. 324
82 S.Ct. 337
7 L.Ed.2d 317
A. L. MECHLING BARGE LINES, INC., et al., Appellants,v.UNITED STATES of America and Interstate Commerce Commission.
No. 41.
Argued Nov. 8 and 9, 1961.
Decided Dec. 18, 1961.
Edward B. Hayes, Chicago, Ill., for appellants.
Daniel M. Friedman, Washington, D.C., for appellees, the United States and the Interstate Commerce Commission.
Donald M. Tolmie, Chicago, Ill., for appellees, the Intervening Railroads.
Mr. Justice Brennan delivered the opinion of the Court.
1
In December 1958 the appellee railroads published and filed with the Interstate Commerce Commission tariffs establishing through combination rates, from grain producing areas in Northern Illinois to certain Eastern destinations, which were lower than local or flat rates for the same commodities from Chicago to the same destinations. Since these tariffs would be in violation of the long-and short-haul provisions of § 4(1) of the Interstate Commerce Act,1 the railroads simultaneously applied for the administrative relief which is authorized by the first proviso to § 4(1).2 Timely protests were filed by the appellant barge lines, alleging that the proposed railroad rates threatened the extinction of legitimate competition by water carriers for the traffic from the producing areas into Chicago. On January 9, 1959, Division 2 of the Commission entered Fourth Section Order No. 19059, authorizing the proposed railroad rates—although expressly withholding approval of them—pending further Commission action.3 The Order was entered before any hearing had been held or investigation completed, and the Division did not set out any findings. On the same day, Division 2 ordered that an investigation be instituted with respect to the lawfulness of the rates.4
2
Pending final Commission determination as to whether permanent Fourth Section relief was warranted, and after Order 19059 had been in effect for 10 months, the appellant barge lines filed the action of which review is presently sought, in the District Court for the Eastern District of Missouri. The complaint was based in part on the statutory procedure for review of Interstate Commerce Commission orders,5 and it prayed the court to set aside Order 19059 on the ground that the Commission lacked power to grant Fourth Section relief as to protested tariffs without first completing a full investigation, holding an adversary hearing, and making explicit findings that the statutory criteria for the granting of such relief had been met.6 The complaint also sought relief under the Declaratory Judgments Act7 and under the judicial review provisions of the Administrative Procedure Act;8 the complaint alleged that the challenged administrative practice was a continuing one, and prayed for a declaration that that practice was beyond the powers of the Commission.
3
Pending the determination of the action, the railroads eliminated the long-haul short-haul discrimination from their rates and notified the Commission by letter of their withdrawal of the Fourth Section application respecting which Order 19059 had granted temporary relief. Having intervened as defendants in the pending lawsuit, the railroads, together with the Commission, then moved for dismissal of the action on the grounds, first, that as to the prayer for annulment of Order 19059 the withdrawal of the Fourth Section application had rendered the cause moot; and, second, that the District Court lacked jurisdiction to grant a declaratory judgment.9 The District Court granted the motions to dismiss. 188 F.Supp. 386. The barge lines then perfected this appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and we postponed decision as to our jurisdiction until hearing on the merits. 365 U.S. 865, 81 S.Ct. 901, 5 L.Ed.2d 857.
4
We are, of course, in any event empowered and obliged to determine the jurisdictional questions in deciding whether the District Court correctly dismissed the case. And that is necessarily our initial inquiry on this appeal. Appellants do not deny that Order 19059 is presently devoid of practical effect, inasmuch as the Fourth Section application to which it relates has been withdrawn. Still, they insist that the case is neither moot nor inappropriate for the granting of declaratory relief.
5
First, appellants assert in their brief that they 'have a continuing interest in having F.S.O. 19059 vacated since it would be a defense to any action by appellants against the railroads for damages suffered from the railroads' fourth section departure rates.' Appellants point, in this connection, to certain of our decisions10 which suggest to them that they will be precluded from attacking Order 19059 collaterally and that the order must be set aside, if at all, by statutory direct review.
6
In United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36, this Court expressed the view that a party should not be concluded in subsequent litigation by a District Court's resolution of issues, when appellate review of the judgment incorporating that resolution, otherwise available as of right, fails because of intervening mootness. We there held that that principle should be implemented by the reviewing court's vacating the unreviewed judgment below.11 We think the principle enunciated in Munsingwear at least equally applicable to unreviewed administrative orders, and we adopt its procedure here. The District Court should have vacated the order which it declined to review.12 Since our disposition rests solely on the mootness occasioned by the railroads' elimination of the long-haul short-haul discrimination, it is not to be taken as foreclosing determination, on any appropriate future occasion, as to (a) whether the Commission was empowered to enter Order 19059 utilizing the procedures it did; (b) whether Order 19059 was effective to authorize the Fourth Section departures to which it related; or (c) whether the pendency of Order 19059 establishes a defense for the railroads if the appellants carry out their intention expressed to us to predicate a damage suit against the railroads on the alleged violation of the statute. Of course, we here intimate no view as to whether there may exist a cause of action for damages in favor of a competing carrier predicated on a Fourth Section departure.
7
Second, appellants assert in their brief that since 'the * * * practice of the Commission in granting 'temporary' authority for Fourth Section departures to the Railroads over the protests of the appellants and without any hearing or findings in the order granting such authority' is a 'continuing' one, there is presently an actual controversy within the jurisdiction of the Court to resolve by declaratory judgment.13
8
We think it significant on this aspect of the case that the Commission has, on this appeal, conceded that it is obliged to make findings and that the challenged order is fatally defective because no supporting findings were made. The Commission further represents that it has amended its practice accordingly. It thus appears that one of the 'continuing' practices whose validity appellants would have us adjudicate continues no longer. Nor would it be appropriate to decide at this juncture whether the Commission is required to hold an evidentiary hearing prior to granting 'temporary Fourth Section relief.' Despite the Commission's present insistence that it is not so required, experience with its newly adopted practice of making findings in respect of all protested Fourth Section Orders may lead the Commission to provide for a hearing—at least under some circumstances.
9
Declaratory judgment is a remedy committed to judicial discretion. Nor need this Court first have the view of a lower court before it may decide that such discretion ought not be exercised. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291. We think that sound discretion withholds the remedy where it appears that a challenged 'continuing practice' is, at the moment adjudication is sought, undergoing significant modification so that its ultimate form cannot be confidently predicted. We do not, therefore, reach the possibly difficult questions whether appellants' challenge to the Commission's 'continuing practice' gives rise to an actual controversy, or whether the District Court was on these pleadings otherwise possessed of jurisdiction to render a declaratory judgment.14
10
The order of the District Court dismissing the complaint is modified to provide that the proceedings are remanded to the Interstate Commerce Commission with direction to vacate and set aside Order 19059. It is so ordered.
11
Order modified.
12
Mr. Justice CLARK, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
13
Believing that an actual controversy still exists in this case, I cannot agree that it is moot. In my opinion, the events occurring subsequent to the filing of this suit have not negated the necessity for a decision on the issues raised by the complaint, and I would vacate the dismissal of the three-judge District Court and remand the case to it with instructions to pass on these issues.
14
The complaint filed by appellant barge lines sought to set aside, for lack of statutorily required findings, a temporary order of the Commission permitting certain railroads to impose higher tariffs for the transportation of grain 'for a shorter than for a longer distance over the same line or route.' The complaint also asked for a declaration that it was unlawful under the Act for the Commission and the railroads to engage in a practice whereby such illegal temporary orders in a continuous series were utilized to by-pass the long- and short-haul provisions of § 4(1) of the Act. The railroads in question intervened in the case shortly after the complaint was filed. The issues raised by the complaint are twofold: (1) the validity of the temporary order, and (2) the validity of the alleged continuing practice used against appellants.
15
The three-judge District Court thought that the elimination by the railroads of the long-haul short-haul discrimination, accompanied by the withdrawal of the application which had sought permission for such discrimination, left the decision as to the validity of the temporary order a meaningless issue. This overlooks the fact that the validity of this order is still an actual controversy between the appellants and the intervening railroads. Neither the concession of invalidity by the Commission nor the vacation of the order pursuant to the Court's opinion is determinative of the order's validity. Upon the determination of this issue rests the ability of the appellants to collect damages occasioned by the tariffs used by the railroads pursuant to the temporary order, assuming that a plausible theory of liability exists (a question which I need not now decide). For authority indicating that the validity issue is saved from mootness by the possibility that the order may 'be the basis of further proceedings,' see Southern Pacific Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Moreover, I note the fact that appellants would not be barred from challenging the order in a later suit—the point relied upon by the majority in affirming—does not render the issue moot in this case.
16
If the only need for a decision on the validity of this temporary order were to aid a suit for damages which might possibly be brought, I might not formally take issue with the decision below and its affirmance by my Brethren. However, because of the second issue raised by the complaint,1 i.e., an alleged circumvention of the Act by the utilization of a continuous stream of such temporary orders, the validity of this order, as well as the practice which gave birth to it, is presently disputed in this very case.
17
The continuing practice of which the appellants complain consists of an application by the railroads for an order permitting the imposition of a lower tariff for a long-haul than is charged for a short-haul over the same line; the issuance by the Commission of a temporary order without the necessary findings required by § 4(1); the maintenance of such temporary order as long as possible by delaying the final disposition of the application; and the withdrawal or vacation of such order whenever a judicial test of its validity appears imminent, thereby frustrating any review on the ground of mootness. It is claimed that by continually repeating this process the railroads and the Commission have kept in effect an illegal tariff for transportation by rail to the damage of the competing barge lines.
18
The lower court, although recognizing that the continuing practice issue was before it, felt that this question did not present a justiciable controversy. The opinion of the Court affirms this result by saying that regardless of whether this question presents an actual controversy, it is sound judicial discretion to withhold any relief because the Commission has renounced before this Court the challenged practice. It appears that the Court has placed itself in the dubious position of upholding a discretion that was never exercised on a ground that was never presented. I am mystified by the tactic which in effect exercises a discretion committed initially to the trial court in order to avoid deciding 'possibly difficult questions' properly before this Court.
19
In my view the complaint as interpreted and applied by the court below raises an actual controversy as to the validity of the alleged practice.2 Even though there is a controversy, the court below in the exercise of its discretion might decide that no relief, either injunctive or declaratory, is called for; however, I do not feel that the intervening partial repentance by the Commission compels the lower court to refuse relief. Rather I would think that the Commission's representation is only one fact to be considered along with all the other circumstances which appellants' affidavits indicate they would show if afforded the opportunity.3 Furthermore, the court below might take note of preceding cases which indicate that the railroads have played hanky-panky with their rates for years in an effort to attract freight away from the waterways.4
20
To sum up, at the time this case was dismissed as moot there was a charge that the Commission and the railroad intervenors were following a practice of using illegal 'temporary' orders to frustrate the purpose of Congress to have the Act 'so administered as to recognize and preserve the inherent advantages' of 'all modes of transportation subject (thereto) * * *.' Based on this practice the appellants prayed that the temporary orders and the continuous practice be declared illegal and enjoined and for other appropriate relief. Under the record here presented, I am convinced that there is a controversy which if heard could be amenable to judicial relief. I would vacate the dismissal and remand the case to the court below for its consideration of the issues raised and for its decision thereon, including whether, in the exercise of its discretion, any injunctive or declarative relief is called for; and with the further instruction, in accordance with the practice utilized in Bryan v. Austin, 354 U.S. 933, 77 S.Ct. 1396, 1 L.Ed.2d 1527 (1957), that upon appellants' request they be granted leave to amend their pleadings to meet the changed condition of the case as brought about by the Commission's intervening concession that its order was void, as well as its renouncement of the challenged practice. Indeed, some of our cases indicate that if appellants at that time chose to assert their cause of action for damages, that too might be included in such amendment, in which event that claim would be heard by a single judge of the three-judge court. Compare Bryan v. Austin, supra; Public Service Commission of State of Missouri v. Brashear Freight Lines, 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083 (1941).
1
24 Stat. 380, as amended, 49 U.S.C. § 4(1), 49 U.S.C.A. § 4(1):
'It shall be unlawful for any common carrier subject to this chapter or chapter 12 of this title to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance * * *.'
2
'Provided, That upon application to the Commission and after investigation, such carrier, in special cases, may be authorized by the Commission to charge less for longer than for shorter distances for the transportation of passengers or property, and the Commission may from time to time prescribe the extent to which such designated carriers may be relieved from the operation of the foregoing provisions of this section, but in exercising the authority conferred upon it in this proviso, the Commission shall not permit the establishment of any charge to or from the more distant point that is not reasonably compensatory for the service performed; and no such authorization shall be granted on account of merely potential water competition not actually in existence * * *.'
3
Fourth Section Order No. 19059, Jan. 9, 1959, Grain and Grain Products from Illinois to the East.
4
Docket No. 32790, Jan. 9, 1959, Corn, Oats, Soybeans Illinois to the East.
5
Jurisdiction to enjoin and set aside orders of the Interstate Commerce Commission is conferred on the District Courts by 28 U.S.C. § 1336, 28 U.S.C.A. § 1336. Section 1398 locates venue in the district of the plaintiff's residence or principal office. Section 2322 makes the United States a nominal defendant, § 2323 authorizes the intervention of the Commission or of any interested party, and § 2325 requires such actions to be heard and determined by a three-judge court.
6
The complaint alleged that the statutory requirement that the rate for the longer haul be 'reasonably compensatory' had, by authoritative administrative gloss, been imbued with four distinct criteria, namely, that a rate so described must
'(1) cover and more than cover the extra or additional expenses incurred in handling the traffic to which it applies; (2) be no lower than necessary to meet existing competition; (3) not be so low as to threaten the extinction of legitimate competition by water carriers; and (4) not impose an undue burden on other traffic or jeopardize the appropriate return on the value of carrier property generally, as contemplated in section 15a of the act (49 U.S.C.A. § 15a).'
7
28 U.S.C. §§ 2201, 2202, 28 U.S.C.A. §§ 2201, 2202.
8
60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009.
9
As to lack of jurisdiction to grant a declaratory judgment it was argued not only that there was no 'actual controversy' within the meaning of 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, but also that the statutory provisions set forth in note 5, supra which incorporate no provision for declaratory relief, provide the exclusive mode of judicial review of Interstate Commerce Commission orders.
10
Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671 (shipper's action to compel allotment of cars in contravention of I.C.C. rules must be brought in federal court pursuant to statutory review procedure); Venner v. Michigan Central R. Co., 271 U.S. 127, 46 S.Ct. 444, 70 L.Ed. 868 (stockholder's suit to enjoin railroad from acquiring equipment as authorized by I.C.C. order must be brought in federal court pursuant to statutory review procedure); Callanan Road Imp. Co. v. United States, 345 U.S. 507, 73 S.Ct. 803, 97 L.Ed. 1209 (authority of I.C.C. to amend certificate cannot be raised collaterally in proceeding to interpret amended certificate).
11
Such has been the long-standing practice of this Court in civil cases. See United States v. Munsingwear, Inc., 340 U.S. 36, 39—40, note 2, 71 S.Ct. 104, 106—107, 95 L.Ed. 36; Cozart v. Wilson, 352 U.S. 884, 77 S.Ct. 126, 1 L.Ed.2d 82. In Atchison, T. & S.F.R. Co. v. Dixie Carriers, Inc., 355 U.S. 179, 78 S.Ct. 258, 2 L.Ed.2d 186, this Court, having been apprised that the temporary Fourth Section relief order there under attack had been superseded and mooted by a subsequent Commission order, vacated the District Court's judgment and remanded with directions to dismiss the complaint—thus leaving the challenged administrative order unannulled. We do not consider that case to have established any precedent demanding our adherence here, since all the parties there joined in representing to the Court that the challenged order 'is now only of academic interest.' Memorandum Suggesting That the Cause is Moot, p. 3.
12
In their letter informing the Commission of the withdrawal of their Fourth Section application, the railroads expressed their understanding that 'the temporary Fourth Section Orders issued in response to this Application will be cancelled and the authority discontinued.'
13
Appellants state that on several previous occasions judicial review of the practice which they challenge has failed because of intervening mootness occasioned either by the withdrawal of applications, citing Coastwise Line v. United States, D.C. 157 F.Supp. 305; American Commercial Barge Line Co. v. United States, Civ. No. 11772 (S.D.Tex.1959), or by superseding Commission orders, citing Atchison, T. & S.F.R. Co. v. Dixie Carriers, Inc., 355 U.S. 179, 78 S.Ct. 258, 2 L.Ed.2d 186.
14
See note 9, supra.
1
It could be argued that even if the continuing practice was not an issue in the case, its existence could be considered in determining whether the case is moot. See Southern Pacific Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911).
2
Analysis of the complaint reveals that appellants alleged the Commission 'still follows the practice of entering such orders without supporting findings.' It was requested that 'the absence of any power and authority in the Commission to enter temporary fourth-section orders prior to a hearing, and to enter them without supporting findings, be definitely established.' Also, appellants noted that the validity of the Commission's temporary order might become moot by the entry of a final order, 'just as other cases in which similar relief has been sought have become moot before the issues could be determined by the Supreme Court.'
3
Such other factors would include evidence that, in 1958 1959 alone, the water carriers had protested eight other separate and distinct § 4 relief applications in which temporary orders similar to that involved here were sought and obtained; that in over a year only one of these applications had been formally acted upon by the Commission; that two of these applications were withdrawn in the face of pending tests; that five of these applications are still awaiting final decision before the Commission with temporary orders having been in effect for over one and a half years; that these temporary rates were avowedly designed by the railroads to divert freight from the water carriers; and that as a result the water carriers lost thousands of tons of grain shipments per year.
4
Interstate Commerce Commission v. Mechling, 330 U.S. 567, 67 S.Ct. 894, 91 L.Ed. 1102 (1947); Interstate Commerce Commission v. Inland Waterways Corp., 319 U.S. 671, 692—703, 63 S.Ct. 1296, 1307—1313, 87 L.Ed. 1655 (dissenting opinion) (1943). Also see cases cited note 13 of the Court's opinion.
| 89
|
368 U.S. 291
82 S.Ct. 349
7 L.Ed.2d 294
UNITED STATES, Petitioner,v.UNION CENTRAL LIFE INSURANCE COMPANY.
No. 52.
Argued Nov. 7, 1961.
Decided Dec. 18, 1961.
I. Henry Kutz, Washington, D.C., for the petitioner.
H. William Butler, Detroit, Mich., for the respondent.
Opinion of the Court by Mr. Justice BLACK, announced by Mr. Justice FRANKFURTER.
1
Robert G. Peters, Jr., and his wife, of Oakland County, Michigan, failed to pay their 1952 federal income taxes. In January 1954 an assessment for this delinquency was filed in the Internal Revenue Collector's Office at Detroit, Michigan, at which time a lien arose 'in favor of the United States upon all property' of the two delinquent taxpayers.1 Some 10 months after the Government's tax lien arose, Mr. and Mrs. Peters executed a mortgage on real property they owned in Oakland County to secure an indebtedness to the respondent Union Central Life Insurance Company. They defaulted in payment of the mortgage, and Union Central filed this action to foreclose in the Circuit Court of Oakland County, joining the United States as a party defendant because of its asserted lien.
2
The company claimed priority for its mortgage over the earlier created federal lien because no notice of the federal lien had been filed with the register of deeds in Oakland County as then required by Michigan law.2 For this alleged priority the company relied on § 3672(a)(1) of the 1939 Internal Revenue Code, as amended 26 U.S.C.A. § 3672(a)(1), providing that a federal tax lien shall not be valid as against any mortgagee until notice has been filed 'in the office in which the filing of such notice is authorized by the law of the State or Territory in which the property subject to the lien is situated, whenever the State or Territory has by law authorized the filing of such notice in an office within the State or Territory.' The Government, however, claimed that Michigan had not 'authorized' filing within the meaning of the statute and that the case should be governed by § 3672(a)(2) which provides that 'whenever the State * * * has not by law authorized the filing of such notice in an office within the State,' the notice may be filed in 'the office of the clerk of the United States district court for the judicial district in which the property subject to the lien is situated.' Since the federal lien had been filed in the District Court months before the mortgage was executed and filed in the county register of deeds' office, the Government claimed that its lien had priority. The Government's contention that Michigan had not 'authorized' a state office for filing the federal tax notice was based on the fact that the Michigan law purporting to authorize such filing expressly required that a federal tax lien notice contain 'a description of the land upon which a lien is claimed,' even though the form long used for filing federal tax lien notices in the District Courts throughout the United States does not contain a description of any particular property upon which the lien is asserted. In support of its contention the Government pointed to the fact that in 1953 the Michigan Attorney General ruled that federal tax lien notices not containing such a description are not entitled to recordation, and it is stipulated that from the time of that ruling, up to 1956,3 'it was the policy of the office of the Register of Deeds for said County of Oakland not to accept for recording notices of Federal tax liens which did not contain a legal description of any land.'
3
Because the United States had not filed a notice complying with the Michigan law, the Michigan Circuit and Supreme Courts held the federal lien to be subordinate to the mortgage, 361 Mich. 283, 105 N.W.2d 196. While this holding is in accord with Youngblood v. United States, 141 F.2d 912 (C.A.6th Cir.), it conflicts with United States v. Rasmuson, 253 F.2d 944 (C.A.8th Cir.). In order to settle this conflict and because of the importance of the question in the administration of the revenue laws, we granted certiorari. 365 U.S. 858, 81 S.Ct. 826, 5 L.Ed.2d 822.
4
The Michigan requirement that notice of the federal tax lien be filed in Michigan is, of course, not controlling unless Congress has made it so, for the subject of federal taxes, including 'remedies for their collection, has always been conceded to be independent of the legislative action of the states.' United States v. Snyder, 149 U.S. 210, 214, 13 S.Ct. 846, 847, 37 L.Ed. 705. While § 3672(a)(1) unquestionably requires notice of a federal lien to be filed in a state office when the State authoritatively designates an office for that purpose, the section does not purport to permit the State to prescribe the form or the contents of that notice. Since such an authorization might well result in radically differing forms of federal tax notices for the various States, it would run counter to the principle of uniformity which has long been the accepted practice in the field of federal taxation. Moreover, a required compliance with Michigan law would mean that the federal tax lien would be superior to all those entitled to notice only as to the property described in the notice even though § 3670 broadly creates a lien 'upon all property and rights to property, whether real or personal, belonging to' a taxpayer. This language has been held to include in the lien all property owned by the delinquent taxpayer both at the time the lien arises and thereafter until it is paid.4 It seems obvious that this expansive protection for the Government would be greatly reduced if to enforce it government agents were compelled to keep aware at all times of all property coming into the hands of its tax delinquents. Imposition of such a task by the Michigan law could seriously cripple the Government in the collection of its taxes, and to attribute to Congress a purpose so to weaken the tax liens it has created would require very clear language. The history of § 3672 belies any such congressional purpose.
5
In 1893 this Court decided in United States v. Snyder, 149 U.S. 210, 13 S.Ct. 846, that the federal tax lien could be enforced against bona fide purchasers who had no notice of the lien, despite a state law attempting to defeat the lien unless it has been recorded. In order to grant relief from the Snyder rule, Congress in 1913 passed an Act requiring, much as the provision here in question did, that the tax liens should not be 'valid as against any mortgagee, purchaser, or judgment creditor' until notice was filed with the clerk of an appropriate District Court, or, whenever a State authorized such filing, in the office of a county recorder of deeds.5 This statute was amended in 1928 by adding that the lien would not be valid until notice was filed 'in accordance with the law of the State or Territory in which the property subject to the lien is situated, whenever the State or Territory has by law provided for the filing of such notice * * *.'6 (Emphasis supplied.) Following this in United States v. Maniaci, D.C., 36 F.Supp. 293, aff'd, 6 Cir., 116 F.2d 935, both a United States District Court and a Court of Appeals refused to enforce a federal tax lien on Michigan property because the notice of lien, although filed both in a District Court and in the office of the proper Michigan register of deeds, did not contain the description of the property required by Michigan law. In this holding emphasis was placed on the clause added in 1928, requiring notice to be filed 'in accordance with the law of the State of Territory in which the property subject to the lien is situated * * *.'
6
Less than two years after the Maniaci holding Congress again amended the lien notice provisions, struck out 'in accordance with the law of the State or Territory' and substituted the language in the section here controlling that notice was not valid until filed 'In the office in which the filing of such notice is authorized by the law of the State or Territory.'7 The reports of the House and Senate Committees reporting this amendment point strongly to a purpose to get away from the ruling in the Maniaci case and make it clear that, while notice of a federal lien must be filed in a state office where authorized by a State, the notice is sufficient if given in the form long used by the Department 'without regard to other general requirements with respect to recording prescribed by the law of such State or Territory.'8 The Department never accepted the Maniaci case and its practice has been to use forms which do not contain a particular description of any property owned by a delinquent taxpayer. The notice provisions were once more amended in the 1954 Code, this time providing that the notice shall be valid if in the Department form 'notwithstanding any law of the State or Territory regarding the form or content of a notice of lien.'9 The House Report stated that this amendment was merely 'declaratory of the existing procedure and in accordance with the long-continued practice of the Treasury Department.'10
7
The Michigan law authorizing filing only if a description of the property was given placed obstacles to the enforcement of federal tax liens that Congress had not permitted, and consequently no state office was 'authorized' for filing within the meaning of the federal statute. It was therefore error for the Michigan courts to fail to give priority to the Government's lien here, notice of which had been filed in the District Court in accordance with federal law.
8
The judgment of the Michigan Supreme Court is reversed and the cause is remanded to that court for proceedings not inconsistent with this opinion.
9
Reversed and remanded.
10
Mr. Justice DOUGLAS dissents.
1
Sections 3670 and 3671 of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 3670, 3671, in effect at that time.
2
Act 104, Public Acts of Michigan of 1923, repealed April 13, 1956, by Act 107, Public Acts of Michigan of 1956.
3
Act 104 was repealed April 13, 1956.
4
Glass City Bank v. United States, 326 U.S. 265, 66 S.Ct. 108, 90 L.Ed. 56.
5
37 Stat. 1016.
6
45 Stat. 876.
7
56 Stat. 957, § 3672(a)(1) of the Internal Revenue Code of 1939, as amended.
8
H.R.Rep. No. 2333, 77th Cong., 2d Sess. 173. See also S.Rep. No. 1631, 77th Cong., 2d Sess. 248.
9
Section 6323(b) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6323(b).
10
H.R.Rep. No. 1337, 83d Cong., 2d Sess. A406-A407.
| 1112
|
368 U.S. 399
82 S.Ct. 429
7 L.Ed.2d 378
NATIONAL LABOR RELATIONS BOARDv.BRANDMAN IRON CO.
No. 35.
Decided Jan. 15, 1962.
Former Solicitor General Rankin, Solicitor General Cox, Stuart Rothman, Dominick L. Manoli and Norton J. Come, for petitioner.
PER CURIAM.
1
The petition for a writ of certiorari is granted. The respondent consented to the entry by the National Labor Relations Board of an order directing it to cease-and-desist from certain practices as regards membership of its employees in a named labor organization 'or any other labor organization of its employees.' The respondent further waived all defenses to the entry by the Court of Appeals of a decree enforcing said order. The Court of Appeals, sua sponte, struck the words 'or any other labor organization of its employees' wherever they appeared in the Board's order. 6 Cir., 281 F.2d 797. The judgment of the Court of Appeals is reversed and the case is remanded with directions that a judgment be entered which affirms and enforces the Board order. Labor Board v. Ochoa Fertilizer Corp., 368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312.
2
Petition granted.
3
Mr. Justice DOUGLAS, dissents.
| 89
|
368 U.S. 351
82 S.Ct. 424
7 L.Ed.2d 346
Paul SEYMOUR, Petitioner,v.SUPERINTENDENT OF WASHINGTON STATE PENITENTIARY.
No. 62.
Argued Dec. 13, 1961.
Decided Jan. 15, 1962.
Glen A. Wilkinson, Washington, D.C., for petitioner. Claron C. Spencer was with him on the briefs.
Stephen C. Way, Olympia, Wash., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The petitioner Paul Seymour was charged with burglary by the State of Washington in the Superior Court of Okanogan County and pleaded guilty to the lesser included offense of attempted burglary. Upon this plea he was convicted and sentenced to serve seven and one-half years in the state penitentiary. Later, he commenced this proceeding by filing a petition for writ of habeas corpus in the State Supreme Court urging that his state conviction was void for want of jurisdiction on the grounds that he was an enrolled, unemancipated member of the Colville Indian Tribe and therefore a ward of the United States; that the 'purported crime' of burglary for which he had been convicted was committed in 'Indian country' as defined in 18 U.S.C. § 1151, 18 U.S.C.A. § 1151;1 and that burglary committed by an Indian in Indian country is an offense 'within the exclusive jurisdiction of the United States' under 18 U.S.C. § 1153, 18 U.S.C.A. § 1153.2 Since the petition, return and answer raised issues of fact, the State Supreme Court referred the matter to the original trial court to determine (1) whether petitioner was a member of the Colville Tribe, and (2) whether the offense was committed in Indian country. After hearings, the trial court upheld petitioner's claim of membership in the Colville Tribe, but rejected his contention that the burglary upon which the state conviction was based had occurred in Indian country.
2
The trial court's conclusion that the crime did not take place in Indian country was not based upon any factual doubt as to the precise place where the burglary occurred for that fact was undisputed. Nor did that conclusion rest upon any uncertainty as to the proper definition of the term 'Indian country' for the court expressly recognized the applicability of § 1151 which defines the term to include 'all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation * * *.' Rather, the trial court's conclusion rested solely upon its holding that, although the land upon which the burglary occurred had once been within the limits of an Indian reservation, that reservation had since been dissolved and the land in question restored to the public domain.
3
Agreeing with the trial court, the State Supreme Court then denied the petition for habeas corpus,3 holding as it previously had in State ex rel. Best v. Superior Court,4 that 'What is still known as the south half of the diminished Colville Indian reservation is no longer an Indian reservation.' Since the question of whether the place where the crime occurred is a part of an Indian reservation and therefore Indian country within the meaning of §§ 1151 and 1153 depends upon the interpretation and application of federal law, and since the resolution of that question as presented in this case raises issues of importance pertaining to this country's relationship to its Indian wards, we granted certiorari.5
4
The case turns upon the current status of the Colville Indian Reservation—a reservation created in 1872 by Executive Order of President Grant which declared that 'the country bounded on the east and south by the Columbia River, on the west by the Okanagan River, and on the north by the British possessions, be, and the same is hereby, set apart as a reservation for' the Colville Indians.6 In 1892, the size of this reservation was diminished when Congress passed an Act providing that, subject to reservations and allotments made to individual Colville Indians, about one-half of the original Colville reservation, since commonly referred to as the 'North Half,' should be 'vacated and restored to the public domain * * *.'7 This Act did not, however, purport to affect the status of the remaining part of the reservation, since known as the 'South Half' or the 'diminished Colville Indian Reservation,' but instead expressly reaffirmed that this South Half was 'still reserved by the Government for their (the Colville Indians') use and occupancy.'8 Since the burglary of which petitioner was convicted occurred on land within the South Half, it is clear that state jurisdiction over the offense charged, if it is to be found at all, must be based upon some federal action subsequent to the 1892 Act.
5
The Washington courts found authority for the assertion of state jurisdiction in a 1906 Act of Congress9 implemented by a 1916 Presidential Proclamation.10 The 1906 Act provided for the sale of mineral lands and for the settlement and entry under the homestead laws of other surplus lands remaining on the diminished Colville Reservation after allotments were first made and patents issued for 80 acres of land to 'each man, woman, and child' either 'belonging to or having tribal relations on said Colville Indian Reservation * * *.' The 1916 Presidential Proclamation issued pursuant to this Act simply prescribed the method for disposal of surplus lands under the homestead laws as the 1906 Act had authorized. The Washington courts viewed this 1906 Act and the 1916 Presidential Proclamation as completely wiping out the South Half of the Colville Reservation in precisely the same manner as the 1892 Act had 'vacated and restored' the North Half of the reservation 'to the public domain.' Upon careful consideration, however, we cannot agree with that conclusion for it has no support in the language of the 1906 Act and ignores important differences between that Act and the provisions of the 1892 Act restoring the North Half of the reservation to the public domain.
6
Nowhere in the 1906 Act is there to be found any language similar to that in the 1892 Act expressly vacating the South Half of the reservation and restoring that land to the public domain. Quite the contrary, the 1906 Act repeatedly refers to the Colville Reservation in a manner that makes it clear that the intention of Congress was that the reservation should continue to exist as such.11 Moreover, the 1906 Act, unlike the 1892 Act, provides that the proceeds from the disposition of lands affected by its provisions shall be 'deposited in the Treasury of the United States to the credit of the Colville and confederated tribes of Indians belonging and having tribal rights on the Colville Indian Reservation, in the State of Washington * * *.' The 1892 Act had provided for congressional power to appropriate the net proceeds from the sale and disposition of lands in the North Half of the original reservation for the general public use. Consequently, it seems clear that the purpose of the 1906 Act was neither to destroy the existence of the diminished Colville Indian Reservation nor to lessen federal responsibility for and jurisdiction over the Indians having tribal rights on that reservation. The Act did no more than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards.
7
That this is the proper construction of the 1906 Act finds support in subsequent congressional treatment of the reservation. Time and time again in statutes enacted since 1906, Congress has explicitly recognized the continued existence as a federal Indian reservation of this South Half or diminished Colville Indian Reservation.12 As recently as 1956, Congress enacted a statute which provides that 'the undisposed-of lands of the Colville Indian Reservation, Washington, dealt with by the Act of March 22, 1906 (34 Stat. 80), are hereby restored to tribal ownership to be held in trust by the United States to the same extent as all other tribal lands on the existing reservation, subject to any existing valid rights.'13 (Emphasis supplied.) This same construction of the 1906 Act has been adopted by the Department of Interior, the agency of government having primary responsibility for Indian affairs.14 And the Solicitor General has urged this construction upon the Court in this very case. We therefore conclude that the Washington courts erred in holding that the 1906 Act dissolved the Colville Indian Reservation because it seems clear that this reservation is still in existence.
8
Counsel for the State of Washington present two alternative contentions which, if sound, would sustain the jurisdiction of the State over the land here in question even if the Act of 1906 did not completely dissolve the reservation in the manner held by the Washington courts. The first of these rests upon the assertion that the particular parcel of land upon which this burglary was committed is held under a patent in fee by a non-Indian. The contention is that, even though the reservation was not dissolved completely by the Act permitting non-Indian settlers to come upon it, its limits would be diminished by the actual purchase of land within it by non-Indians because land owned in fee by non-Indians cannot be said to be reserved for Indians. This contention is not entirely implausible on its face and, indeed, at one time had the support of distinguished commentators on Indian Law.15 But the issue has since been squarely put to rest by congressional enactment of the currently prevailing definition of Indian country in § 1151 to include 'all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent * * *.'
9
The State urges that we interpret the words 'notwithstanding the issuance of any patent' to mean only notwithstanding the issuance of any patent to an Indian. But the State does not suggest, nor can we find, any adequate justification for such an interpretation. Quite the contrary, it seems to us that the strongest argument against the exclusion of patented lands from an Indian reservation applies with equal force to patents issued to non-Indians and Indians alike. For that argument rests upon the fact that where the existence or nonexistence of an Indian reservation, and therefore the existence or nonexistence of federal jurisdiction, depends upon the ownership of particular parcels of land, law enforcement officers operating in the area will find it necessary to search tract books in order to determine whether criminal jurisdiction over each particular offense, even though committed within the reservation, is in the State or Federal Government.16 Such an impractical pattern of checkerboard jurisdiction was avoided by the plain language of § 1151 and we see no justification for adopting an unwarranted construction of that language where the result would be merely to recreate confusion Congress specifically sought to avoid.
10
The second alternative contention pressed by the State of Washington rests upon the fact that the land on which the burglary occurred is located within the governmental townsite of Omak, a town laid out by the Federal Government pursuant to authority granted in § 11 of the 1906 Act. The State contends that when this authorized townsite plot was filed for record in Okanogan County, all the lands encompassed within the townsite were thereby dedicated to the public interest and, since this dedication to the public is inconsistent with any reservation for the Indians, all these lands became subject to the exercise of criminal jurisdiction by the courts of Washington. This contention is nothing more than a variation of the State's first alternative contention for it simply attempts to make a special case for excluding from a reservation lands owned by towns as opposed to lands owned by individual non-Indians. The arguments which led us to reject the State's first alternative contention, though present only with somewhat less force here, are nonetheless entirely adequate to require the same answer to this contention. Moreover, the State can point to no language in § 1151's definition of Indian country which lends the slightest support to the idea that by creating a townsite within an Indian reservation the Federal Government lessens the scope of its responsibility for the Indians living on that reservation.
11
In United States v. Celestine,17 this Court said that 'when Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress.' We are unable to find where Congress has taken away from the Colville Indians any part of the land within the boundaries of the area which has been recognized as their reservation since 1892. Since the burglary with which petitioner was charged occurred on property plainly located within the limits of that reservation, the courts of Washington had no jurisdiction to try him for that offense.
12
The judgment of the Washington Supreme Court denying petitioner's plea for a writ of habeas corpus is therefore reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
13
Reversed and remanded.
1
62 Stat. 757, as amended, 63 Stat. 94.
2
'Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.' 62 Stat. 758.
3
Seymour v. Schneckloth, 55 Wash.2d 109, 346 P.2d 669.
4
107 Wash. 238, 241, 181 P. 688, 689.
5
365 U.S. 833, 81 S.Ct. 749, 5 L.Ed.2d 743.
6
I Kappler, Indian Affairs, Laws and Treaties (2d ed.), p. 916.
7
27 Stat. 62, 63.
8
27 Stat. at page 64.
9
34 Stat. 80.
10
39 Stat. 1778.
11
See §§ 2, 3, 6 and 12, 34 Stat. at pages 80—82.
12
See, e.g., 39 Stat. 123, 154—155; 39 Stat. 672; 40 Stat. 449; 41 Stat. 535; 43 Stat. 21; 54 Stat. 703, 16 U.S.C.A. § 835d et seq.; 69 Stat. 141, 143; 70 Stat. 626—627. Two of these statutes, 40 Stat. 449 passed in 1918 and 41 Stat. 535 passed in 1920, do illustrate that there may have been some congressional confusion on this issue during that short period of time for they referred to the 'former Colville Indian Reservation, Washington.'
13
70 Stat. 626—627. It is also significant that § 5 of this 1956 Act, while recognizing the continued existence of the Colville Reservation contained a provision looking towards 'the termination of Federal supervision over the property and affairs of the Confederated Tribes and their members * * *' within a reasonable time. This Act followed closely a 1953 Act, 67 Stat. 588, 590, § 7 of which, 28 U.S.C.A. § 1360 note, provided a way in which the State of Washington could acquire jurisdiction over the reservation by meeting certain conditions prescribed there by Congress. See Williams v. Lee, 358 U.S. 217, 222, note 10, 79 S.Ct. 269, 3 L.Ed.2d 251. These conditions have not as yet been met with respect to the Colville Reservation.
14
See, e.g., 54 I.D. 559; 59 I.D. 147; 60 I.D. 318.
15
See, e.g., Cohen, Handbook of Federal Indian Law, 359 (1942). Of course this work was compiled before the 1948 amendment which enacted the present definition of Indian country as set out in 18 U.S.C. § 1151, 18 U.S.C.A. § 1151.
16
Objection to the possibility of such an administratively unworkable distribution of criminal jurisdiction has been voiced by the Solicitor of the Department of Interior. 61 I.D. 298, 304. And see United States v. Frank Black Spotted Horse, 8 Cir., 282 F. 349, 353—354.
17
215 U.S. 278, 285, 30 S.Ct. 93, 95, 54 L.Ed. 195.
| 12
|
368 U.S. 370
82 S.Ct. 408
7 L.Ed.2d 360
UNITED STATES of America et al., Appellants,v.Henry E. DRUM et al. REGULAR COMMON CARRIER CONFERENCE OF AMERICAN TRUCKING ASSOCIATIONS, INC., Appellants, v. Henry E. DRUM et al.
Nos. 23, 24.
Argued Oct. 11 and 12, 1961.
Decided Jan. 15, 1962.
Robert W. Ginnane, Washington, D.C., for appellants in No. 23.
Roland Rice, Washington, D.C., for appellant in No. 24.
William L. Peterson, Jr., Oklahoma City, Okl., and Charles R. Iden, Akron, Ohio, for the appellees in both cases.
Mr. Justice Brennan delivered the opinion of the Court.
1
In an investigation initiated by it under 49 U.S.C. § 304(c), 49 U.S.C.A. § 304(c),1 the Interstate Commerce Commission held that appellees who leased their motor vehicles and hired their services as drivers to the appellee Oklahoma Furniture Manufacturing Company (hereinafter 'Oklahoma') were contract carriers within 49 U.S.C. § 303(a)(15), 49 U.S.C.A. § 303(a)(15)2 and subject to the permit requirements of 49 U.S.C. § 309(a)(1), 49 U.S.C.A. § 309(a)(1).3 79 M.C.C. 403.
2
A three-judge court in the District Court for the Western District of Oklahoma, convened under 28 U.S.C. § 2325, 28 U.S.C.A. § 2325, in a proceeding commenced by appellees pursuant to 28 U.S.C. §§ 1336 and 1398, 28 U.S.C.A. §§ 1336 and 1938,4 set aside the cease-and-desist order by which the Commission required the lessors to refrain from their operations unless and until they received appropriate authority therefor from the Commission. 193 F.Supp. 275. The District Court held that Oklahoma was engaged in private carriage as defined in 49 U.S.C. § 303(a)(17), 49 U.S.C.A. 303(a)(17).5 We noted probable jurisdiction of the appeals lodged here under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. 365 U.S. 839, 81 S.Ct. 800, 5 L.Ed.2d 807.
3
The Motor Carrier Act of 19356 subject many aspects of interstate motor carriage—including entry of persons into the business of for-hire motor transportation and the oversight of motor carrier rates—to administrative controls, on the premise that the public interest in maintaining a stable transportation industry so required.7 However, although aware that 'Both (contract carriers and common carriers) * * * are continually faced with actual or potential competition from private truck operation * * *,'8 Congress took cognizance of a shipper's interest in furnishing his own transportation,9 and limited the application of the licensing requirements to those persons who provide 'transportation * * * for compensation'10 or, under a 1957 Amendment, 'for-hire transportation.'11 The Commission, therefore, has had to decide whether a particular arrangement gives rise to that 'for-hire' carriage which is subject to economic regulation in the public interest, or whether it is, in fact, private carriage as to which Congress determined that the shipper's interest in carrying his own goods should prevail. This case is a recent instance of the Commission's developing technique of decision.
4
From the beginning underlying principles have been, and have remained, clear. A primary objective of the scheme of economic regulation is to assure that shippers generally will be provided a healthy system of motor carriage to which they may resort to get their goods to market. This is the goal not only of Commission surveillance of licensed motor carriers as to rates and services, but also of the requirement that the persons from whom shippers would purchase a transportation service designed to meet the shippers' distinctive needs must first secure Commission approval. See Contracts of Contract Carriers, 1 M.C.C. 628, 629; Keystone Transportation Co., 19 M.C.C. 475, 490—492. The statutory requirement that a certificate or permit be issued before any new for-hire carriage may be undertaken bespeaks congressional concern over diversions of traffic which may harm existing carriers upon whom the bulk of shippers must depend for access to market.12 Accordingly, the statutory definitions, while confirming that a shipper is free to transport his own goods without utilizing a regulated instrumentality, at the same time deny him the use of 'for compensation' or 'for-hire' transportation purchased from a person not licensed by the Interstate Commerce Commission. Because the definitions must, if they are to serve their purpose, impose practical limitations upon unregulated competition in a regulated industry, they are to be interpreted in a manner which transcends the merely formal. From the outset the Commission has correctly interpreted them as importing that a purported private carrier who hires the instrumentalities of transportation from another must—if he is not to utilize a licensed carrier—assume in significant measure the characteristic burdens of the transportation business. The problem is one of determining—by reference to the clear but broad remedial purpose of a regulatory statute committed to agency administration—the applicability to a narrow fact situation of imprecise definitional language which delineates the converage of the measure. Private carriers are defined simply as transporters of property who are neither common nor contract carriers; and the statute will yield up no better verbal guide to the reach of its licensing provisions than transportation 'for compensation' or 'for-hire.' Compare Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S.Ct. 595, 48 L.Ed. 894; Rochester Tel. Corp. v. United States, 307 U.S. 125, 144—146, 59 S.Ct. 754, 764—765, 83 L.Ed. 1147; Gray v. Powell, 314 U.S. 402, 412—413, 62 S.Ct. 326, 332—333, 86 L.Ed. 301; National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130—131, 64 S.Ct. 851, 860—861, 88 L.Ed. 1170. Because the Commission's resolution of the issue does not seem to us to violate the coherence of the body of administrative and judicial precedents so far developed in this area, we are of the opinion that there was no occasion for the District Court to disturb the conclusion reached by the Commission. We therefore reverse the District Court's judgment.
5
It was a wish to rid itself of certain burdens of its existing transportation operation which caused Oklahoma to enter into the arrangement here involved. Prior to 1952 Oklahoma, a manufacturer of low-cost furniture, had maintained a full fleet of tractors and trailers in which all its furniture was shipped. A full crew of drivers was employed. Oklahoma absorbed all the expenses, and carried all the risks, of its transportation operation. It utilized a system of delivered pricing which eliminated transportation charges as an identifiable element of the price of its furniture. Its status as a private carrier exempt from licensing requirements was never questioned under the pre-1952 arrangement. But that method of operation was found to incorporate certain burdensome disadvantages. Oklahoma discovered that its employee-drivers were embezzling its funds through the misuse of credit arrangements which the company had established for the purchasing of fuel and minor repairs on the road. In addition, Oklahoma became convinced that its equipment was too often involved in accidents, and too often in need of repairs and maintenance which could have been avoided by careful operation.
6
In an effort to eliminate these disadvantages, Oklahoma in 1952 altered its modus operandi. It decided to terminate its investment in tractors for long hauls and, instead, to lease them from the drivers. The original lease agreements encountered difficulty when, in 1956, the Supreme Court of Arkansas held that the resultant operation constituted for-hire carriage by the owner-operators which required licensing under the applicable Arkansas statutes.13 Following this turn of events, Oklahoma revised the leases, and also entered into a collective agreement with the union representing its workers setting forth the terms under which the owner-operators were to be employed as drivers. The current lease and collective agreement provide the factual predicate of the present litigation.
7
The Company presently owns 26 trailers and 6 tractors. It leases 11 tractors for long-haul use in connection with the trailers which it owns. It is solely in connection with the 11 leased tractors and the services of their owner-operators that the Commission discerned the provision of for-hire transportation. The leases are for renewable terms of one year, but they are terminable by either party on 30 days' notice. Oklahoma is granted the sole right to control the use of the tractor through drivers employed by it; in return, it covenants that such use will be lawful and will be confined to the transportation of the Company's property. Oklahoma pays for its use of the tractors strictly on a milease basis. The owner receives weekly rental payments of 10 or 11 cents for each mile the vehicle is driven, plus an extra 3 cents per mile on the backhaul if there is a load of raw materials. Oklahoma does not guarantee any minimum mileage. Operating costs—including gasoline, oil, grease, parts, and registration fees—are paid by the owners. Oklahoma assumes no responsibility for wear and tear or damage to the tractors, nor does it provide collision or fire and theft insurance coverage—although it does pay for public liability and property damage insurance. The owners assume no responsibility to Oklahoma for damage to the cargoes.
8
Under the collective agreement covering the drivers among its employees, the drivers enjoy certain common employment privileges such as collective bargaining, seniority rights, death benefits, immunity from discharge except for cause, military-service protection, and vacation pay in an amount based on their average weekly pay. Owner-drivers may be discharged for cause.14 Their remuneration is calculated strictly on a mileage basis, and they are obliged to pay their own living expenses while on the road. No minimum weekly pay or mileage is guaranteed.15 Drivers are required to maintain their trucks in good running condition at all times.
9
Oklahoma's actual operations were a generally faithful reflection of the leases and the collective agreement. Certain matters, not explicitly or unambiguously covered by the written instruments, are of significance. Ordinarily the drivers were assigned to their own tractors, though there were occasional exceptions. Oklahoma's truck superintendent testified that the owner-operators' services were not utilized each day. The owners were required to pay for all repairs, though Oklahoma conducted safety inspections.16 The Company closely directed all details of loading and delivery routes. It instructed the drivers as to steps to be taken in emergencies. It administered physical examinations, supervised the preparation of reports required by the Interstate Commerce Commission, paid social security taxes and withheld income taxes, and provided workmen's compensation.
10
In sum, Oklahoma's operation possessed a number of the hallmarks of a genuine lease of equipment and a genuine employment arrangement.
11
Still, the Company was able to spare itself—and pass to the owner-operators—certain characteristic burdens of the transportation business. The large capital investment in the tractors and the risk of their premature depreciation or catastrophic loss, was borne by the owner-operators, not by the Company. The owner-operators, rather than Oklahoma, stood the risk of a rise in variable costs such as fuel, repairs and maintenance of the tractors in good operating condition, and living expenses, although the thirty-day cancellation privilege, taken together with the possible bargaining power of the owner-operators en bloc, may have affected the degree to which that burden was actually shifted. Finally, Oklahoma was able to divest itself, to a significant extent, of the risk of non-utilization of high-priced equipment. The owner-operators received neither rental payments nor wages when their tractors were not used and they did not drive. Oklahoma did, however, carry the risk of a nonproductive backhaul.17
12
The question before the Commission was whether, under these particular facts, Oklahoma had so far emancipated itself from the burdens of transportation that to permit it, on such terms, to secure a transportation service from these unlicensed owner-operators would be inconsistent with the statutory scheme. The Commission resolved the issue adversely to Oklahoma and the owner-operators. Division 1, one Commissioner dissenting, held that the owner-operators were engaged in contract carriage and ordered them to cease and desist from the activities thus found to be unlawful until such time as they had secured the necessary permits from the Commission. Applications for such permits were invited, the Division's Report observing that the activities presently condemned should not prejudice such applications.18 This disposition was approved by the full Commission on reconsideration.19
13
The Commission dealt with the problem before it by setting out two inquiries which would have to be satisfied before the operations in question could be held to constitute private carriage: First, it would have to be found that no person other than Oklahoma had 'any right to control, direct, and dominate' the transportation. Second, it would have to be found that no person before the Commission was 'in substance, engaged in the business of * * * transportation of property * * * for hire.'20 The Commission found against the respondents on both tests. In connection with the first, or 'control,' test the Commission pointed out that earlier decisions had established a presumption of for-hire transportation whenever equipment was leased by a shipper, which presumption might be defeated by a showing that the shipper had retained the exclusive right to control the operation. Despite the evidence of actual shipper control in this case, the Commission held that the presumption of for-hire transportation remained in effect because 'There is present, whenever the owner-operator drives his own equipment, the right and power of the lessor to defeat any supposed right to control that the shipper-lessee may believe exists.'21 The three-judge District Court reversed the Commission's conclusion relative to shipper control,22 and that action of the District Court is not challenged by the Commission on this appeal.23
14
But a finding of shipper control does not require a resolution of the ultimate issue in the shipper's favor.24 It is true that until recently, 'control' has been at the focus of the Commission's efforts to delineate verbally the permissible area of non-licensed leases of transportation equipment. The initial technique of the Commission was to assess the lessee-shipper's assumption of the burdens of transportation in terms of the degree to which he undertook to 'control' or 'dominate' it.25 The interest in 'control' in turn generated an interest in whether the drivers of leased equipment were in substance treated as the shipper's employees.26 Throughout, however, Commission reports have taken note of various factors which clearly transcend any narrow concept of physical direction of the details of the operation; and it has always been apparent that the vesting of such physical 'control' in the shipper would not in itself suffice to render the transportation private carriage.27
15
Latterly, the Commission has begun to move away from 'control' as the verbal embodiment of its manifold inquiry.28 The Commission thus accords explicit recognition to a premise which has long been implicit in its decisions: That some indicia of private carriage may be assumed, and detailed surveillance of operations undertaken, without a shipper's having significantly shouldered the burdens of transportation. The test of substance with which the Commission supplemented its 'control' inquiry in this case thus betokens no heedless departure from the beaten track of administrative decision which might occasion a judicial curb upon the exercise of administrative discretion.29 No more so does the inclusion in the arrangement between Oklahoma and its owner-drivers of a number of particulars also discoverable in arrangements found to constitute private carriage in earlier Commission decisions. We deal in totalities; indicia are instruments of decision, not touchstones. The Commission allowably dealt with this novel situation as an integral and unique problem in judgment, rather than simply as an exercise in counting common-places. Nor did it leave the basis for its decision unarticulated.
16
The Commission's meaning in applying the test of substance in this case is clearly told in the following language in its report:
17
'Here each owner-operator assigns his motor vehicle for a continuing period of time to the exclusive use of the company, furnishing a service designed to meet the distinct need of the company. He provides a service in which the equipment is furnished, maintained, and driven by the owners thereof to transport property in interstate commerce. He guarantees a fixed and definite cost for the transportation, bears the risk of profit or loss from such transportation hazards as delays in transit, breakdowns of equipment, and highway detours, and meets all of the cost of operation including appropriate licenses and trip expenses.' 79 M.C.C., at 412.
18
It is evidence that the Commission here refused to allow Oklahoma the status of a private carrier because of its belief that financial risks are a significant burden of transportation, and its belief that such risks had been shifted by Oklahoma to the owner-operators to an extent which rendered the sanctioning of the operation as private carriage a departure from the statutory design. We think that such conclusions were well within the range of the responsibility Congress assigned to the Commission. The District Court explicitly recognized the propriety of the Commission's inquiring into the substance of the arrangements. Yet the court's conclusion that 'what is involved here is private carriage on the part of the Company, rather than transportation for-hire by the owner-operators.' 193 F.Supp. at 281, rests on no articulated premise other than that Oklahoma did have control. If the court intended to hold that the Commission is confined to the 'control' test, we think it clearly in error in view of the statutory objectives which we have set forth above. If, on the other hand, the court meant to substitute its judgment for the Commission's on the question of substance, we think that, on this record, it indulged in an unwarranted incursion into the administrative domain.
19
Reversed.
20
Mr. Justice DOUGLAS, whom Mr. Justice BLACK joins, concurring.
21
If I read the Court's opinion as my Brother HARLAN reads it, I would dissent from the disposition that is made of the case. The Commission is not a free-wheeling agency that can impose its ideas on this industry by fiat. Congress has provided the standard by which the Commission must adjudicate each case. And it is required to make not only findings that support its decision (Interstate Commerce Comm. v. J—T Transport Co., 368 U.S. 81, 82 S.Ct. 204, 212, 216, 7 L.Ed.2d 147), but also findings that are intelligible and complete. United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 488—489, 62 S.Ct. 722, 729, 86 L.Ed. 971. The case is for me a marginal one on which commissioners as well as judges might differ.* But I do not believe the Commission distorted the statutory standard nor made findings out of conformity with the facts.
22
Hence I join the opinion of the Court.
23
Mr. Justice HARLAN, whom Mr. Justice WHITTAKER joins, dissenting.
24
Were this an instance of a District Court substituting its judgment for that of the Interstate Commerce Commission on a matter which Congress had reserved for agency determination, I would be among the first to maintain that the Commission's action should be respected. Cf. I.C.C. v. J—T Transport Co., 368 U.S. 81, 126—130, 82 S.Ct. 204, 212, 216, 233—235, 7 L.Ed.2d 147 (dissenting opinion). But the order entered by the Commission in the cases now before us is so utterly lacking in evidentiary support, so inconsistent with the uniform course of agency and court decisions, and so contrary to the regulatory plan embodied in the Motor Carrier Act of 1935 and its later amendments, that I cannot join in the judgment which reinstates that order. As I view this record what the Commission has done here amounts in effect to an exercise of power which it does not possess.
25
Under the Motor Carrier Act two things are indisputably clear: (1) Congress, in subjecting 'private' motor carriage only to safety regulation, did not mean otherwise to regulate interstate transportation by persons of 'their own goods in their own vehicles for commercial purposes' (79 Cong.Rec. 5651 (1935), remarks of Senator Wheeler, Chairman of the Senate Committee on Interstate Commerce);1 (2) one engaged in the business of leasing motor vehicles for commercial carriage is not by that fact alone made a 'contract carrier,' subject to full Commission regulation; in other words, equipment rentals as such are not reached by the statute.2 Under the plain terms of the Act and Commission rulings, economic regulation of such rentals comes into play only where 'for-hire' motor carriage has been shown.3
26
This then is not a case like National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, where the construction of an inexplicitly defined term in a statute which was broadly remedial was left to the agency enforcing the law. Despite strong suggestions to the contrary,4 Congress saw fit to exempt private carriers from economic regulation under the Motor Carrier Act. If we were to permit the Commission to exercise its discretion to sweep in a variety of arrangements which legitimately constitute private carriage, we would be authorizing disobedience of the legislative mandate as surely as if we allowed the agency to remove from regulation what clearly amounts to 'for-hire' carriage.
27
Until late 1952, Oklahoma Furniture Company, a manufacturer of low-priced furniture, shipped its product to retail purchasers throughout the United States in company-owned tractors and trailers, driven by its own full-time salaried employees. Discovering that some of its drivers were misusing company credit cards, given them to enable their charging against the Company operating and living expenses while on the road, Oklahoma revamped its long-haul transportation system in such a way as to remove these temptations.5 In essence the new arrangement involved, on the one hand, leasing from each of 11 of the Company's employee-drivers one of the tractors used in long-haul service,6 and shifting to the driver the economic incidents of its maintenance and operation; and, on the other hand, preserving to the Company the exclusive use of the tractor in the conduct of its business, and keeping, in every practical sense, the employee relationship between the driver and the Company. The details of the arrangement and its operation are accurately summarized in the District Court's opinion.7
28
The process of reasoning by which the Commission reached the conclusion that this rearrangement changed to fully regulatable activity that which had theretofore been subject to Commission jurisdiction only from the standpoint of safety, is at best obscure. However, the true measure of what the Court now sanctions is revealed by laying bare the extent to which the agency's conclusion involved a departure from the commonsense criteria that have heretofore entered into Commission determinations as to whether particular arrangements reflected 'private' or 'for-hire' motor carriage.8
29
The Court holds that the shifting of three economic burdens from the Company to the drivers justified the Commission's determination: (1) the substantial capital investments in the tractors, along with the risk of premature loss, were borne by the drivers;9 (2) they undertook the costs of maintaining the vehicles and their own living expenses on the road; and (3) they bore the risk, as the Court envisages it, of 'non-utilization of high-priced equipment' and of their own unemployment. These factors, either singly or in combination, do not, in my view, suffice to warrant the Commission's ruling. The first of them is the normal concomitant of any equipment rental; its presence cannot serve to change the character of a relationship which is not of itself subject to Commission regulation, except from the standpoint of safety (supra, 368 U.S., p. 387, 82 S.Ct., p. 417, note 1). The costs of gas, repairs, and garaging are commonly also assumed by those leasing out motor vehicles for private use.10 See, e.g., R.N.G. Commercial Auto Renters, Inc., 73 M.C.C. 665; Scott Bros., Inc., 32 M.C.C. 253; U-Drive-It Co. of Pennsylvania, 23 M.C.C. 799. The third factor, whatever may be its weight when supported by actuality, is, in the circumstances depicted in this record, no more than a pure abstraction (368 U.S., pp. 394—395, 82 S.Ct., p. 421, infra).
30
As the Court appears to recognize, the other provisions of the arrangement, relating to the cost of maintaining the leased equipment, all point to 'private' carriage. Past cases in the Commission where 'for-hire' carriage has been found, in the face of similar provisions, all involved other factors not present here. Under this arrangement, the Company was entitled to exclusive use of the tractors during the rental period (cf. Joseph A. Bisceglia, 34 M.C.C. 233); it loaded, dispatched, and routed the trucks (cf. William A. Shields, 41 M.C.C. 100);11 it instructed the drivers as to details of service (cf. McKeown Transportation Co., 42 M.C.C. 792); it assumed the risk of loss or damage to the cargo (cf. Edward Allen Carroll, 1 M.C.C. 788); it paid for liability and property damage insurance (cf. Centre Trucking Co., 32 M.C.C. 313);12 it undertook to inspect the tractors to insure compliance with safety regulations (cf. Driver Service, Inc., 77 M.C.C. 243); and it shipped the goods without bills of lading (cf. Jacobs Transfer Co., 46 M.C.C. 265).
31
Nor is the Commission's case strengthened by the circumstance that the appellees, in addition to supplying the vehicles, provided their own services as drivers. That factor would be significant only if the appellees furnished these services as independent contractors, for it is only then that the arrangement differs from an equipment rental in which the lessee mans the leased vehicle with his own employees. It would be strange indeed to attribute to Congress a purpose to classify as a 'for-hire' carrier any employee who, as a condition of employment, is required to purchase a vehicle in which his employer's goods are to be transported.
32
All the standards by which the Commission has previously tested a purported 'employment' relationship prove the existence of such a relationship here. The Company paid the drivers' wages (cf. Columbia Terminals Co., 18 M.C.C. 662);13 deducted social security and federal income taxes (cf. Motor Haulage Co., 46 M.C.C. 107); retained drivers' trip logs and medical certificates (cf. Watson Mfg. Co., 51 M.C.C. 223); bargained with the drivers' labor union over conditions of employment (cf. R.N.G. Commercial Auto Renters, Inc., 73 M.C.C. 665); and reserved the right to engage and discharge (cf. John J. Casale, Inc., 49 M.C.C. 15). In Broth. of Local 24 of Intern. Teamsters, etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 303, 3 L.Ed.2d 312, we held that an agreement setting a minimum rental and other terms for the use of a lessor-driver's equipment was 'within the scope of collective bargaining as defined by federal law.' Id., at 293, 79 S.Ct. at 303. In light of the dissenting opinion, id., at 297—298, 79 S.Ct. at 305—306, it seems clear that the Court concluded that the lessor-drivers were employees, not independent contractors, for purposes of the National Labor Relations Act.
33
Despite the total supervision thus exercised by the Company, if the record revealed that these drivers really risked having no work at all, thus earning no wage, over any period of time, there might be room for argument that they were, in fact, independent contractors. Under the terms of their employment such a theoretical possibility exists, but the facts prove it could not happen.
34
The appellees were paid rental for their vehicles and wages for their services on a per-mile basis. But the testimony of the Company's truck superintendent shows that the Company deliberately attempted to distribute the work so as to assure to each driver weekly wages which were within limits acceptable both to the individual concerned and his labor union. Six tractors continued to be owned by the Company, and individual employees were assigned to these tractors, one to a vehicle, just as the appellees were in effect assigned by the Company to the tractors they owned. Those assigned to company-owned tractors were paid $50 a week plus two cents a mile, and they were dispatched on short hauls. The appellees were sent on long hauls, so that their total mileage would make up for the absence of any fixed wage.14 In addition, if one of the appellees was sick, a driver usually assigned to a company-owned vehicle would be directed to operate the tractor belonging to the incapacitated man in order to assure him of at least the rental payment for his equipment. In short, there is nothing in the record which warrants a finding that the status of the appellees was anything other than that of bona fide employees, or that they in fact shouldered, or anticipated that they might have to bear, any of the economic burdens undertaken by independent contractors.
35
I am not unmindful that the Interstate Commerce Commission has, of late, been much concerned with the problem of drawing the line between legitimate equipment rentals, which it concedes to be 'private carriage,' and what it has come to call 'pseudo-private carriage,' i.e., contract carriage disguised as lease of equipment.15 Obviously the Commission must have the power to deal with schemes that have been devised to avoid regulation. No one would suppose that the Commission was acting beyond its authority if it pierced through the form assumed by a business enterprise purportedly engaged in providing equipment for 'private' carriage and disclosed that it was really supplying 'for-hire' carriage. Decisions of District Courts and Courts of Appeals have uniformly approved the application of the test of 'substance' in such circumstances. E.g., Lamb v. I.C.C., 10 Cir., 259 F.2d 358; I.C.C. v. Isner, D.C., 92 F.Supp. 582; I.C.C. v. Gannoe, D.C., 100 F.Supp. 790. I disagree with the result reached here by the Court, not because the Commission has supplemented its earlier test of 'control' with one of 'substance,'16 but because the application of the very test that is now urged persuades me that this was in reality an employment relationship with an employer engaged in private carriage, and not a 'for-hire' carriage arrangement.
36
In sum, this is a case in which there is no allegation of subterfuge and no basis in the record for attributing a devious motive to the lessee; in which the economic risks transferred by the arrangement to the lessor are no more, and possibly even less, substantial17 than those in the ordinary rental of equipment; and in which the actual conditions of hire disclose that the drivers are bona fide employees of the lessor and are protected by their union representatives against overreaching by the employer. The Commission's order is not saved by the 'totality' test which the Court now brings to its aid. For however viewed, this record adds up to nothing more than a mere rearrangement of Oklahoma's private carriage activities in such a way as, and for no other purpose than, to protect the Company against being cheated by its long-haul driver-employees.
37
If it is within the range of the Commission's permissible discretion to classify these appellees as contract carriers—and thus subject them to the rigorous standards of financial fitness and suitability that the Commission's regulations require of such carriers—what has been thought of as the 'gray' area becomes black, and, in truth, much of what has heretofore been taken for white is now gray. What, for example, would have been the result had title to these tractors remained with the Company under an arrangement whereby they were leased to the drivers and then subleased back to the Company, with the Company assuming the risk of catastrophic loss or destruction? Or what if the drivers had been guaranteed $50 a week in total rental and wages? Would either of these changed circumstances have ousted the Commission of authority to hold the contracts to be 'for-hire' carriage?
38
Indeed, the Court's decision goes far to encourage the Commission to obliterate entirely the congressionally drawn distinction between private and contract carriage. It will be interesting to see as time goes on whether there will be an aftermath to this decision similar to that which followed the blurring of the line between common and contract motor carriers effected by the Court's decision in United States v. Contract Steel Carriers, 350 U.S. 409, 76 S.Ct. 461, 100 L.Ed. 482. See I.C.C. v. J-T Transport Co., supra, 368 U.S. at 107—109, 82 S.Ct. at 223—224 (dissenting opinion).
39
I would affirm.
1
Interstate Commerce Act § 204(c), 49 Stat. 547, as amended, 49 U.S.C. § 304(c), 49 U.S.C.A. § 304(c):
'Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint.'
2
Interstate Commerce Act § 203(a)(15), 49 Stat. 544, as amended, 49 U.S.C. § 303(a)(15), 49 U.S.C.A. § 303(a)(15):
'The term 'contract carrier by motor vehicle' means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to in paragraph (14) of this section and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.'
Interstate Commerce Act § 203(a)(14), 49 Stat. 554, as amended, 49 U.S.C. § 303(a)(14), 49 U.S.C.A. § 303(a)(14), defines 'common carrier' as follows:
'The term 'common carrier by motor vehicle' means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes, except transportation by motor vehicle by an express company to the extent that such transportation has heretofore been subject to chapter 1 of this title, to which extent such transportation shall continue to be considered to be and shall be regulated as transportation subject to chapter 1 of this title.'
3
Interstate Commerce Act § 209(a)(1), 49 Stat. 552, as amended, 49 U.S.C. § 309(a)(1), 49 U.S.C.A. § 309(a)(1):
'Except as otherwise provided in this section and in section 310a of this title (exceptions not here pertinent), no person shall engage in the business of a contract carrier by motor vehicle in interstate or foreign commerce on any public highway or within any reservation under the exclusive jurisdiction of the United States unless there is in force with respect to such carrier a permit issued by the Commission, authorizing such person to engage in such business * * *.'
See also Interstate Commerce Act § 203(c), 71 Stat. 411, as amended, 49 U.S.C. § 303(c), 49 U.S.C.A. § 303(c):
'Except as provided in section 302(c) of this title, subsection (b) of this section, in the exception in subsection (a)(14) of this section, and in the second proviso in section 306(a)(1) of this title (none of which exceptions are here pertinent), no person shall engage in any for-hire transportation business by motor vehicle, in interstate or foreign commerce, on any public highway or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such person a certificate or a permit issued by the Commission authorizing such transportation, nor shall any person engaged in any other business enterprise transport property by motor vehicle in interstate or foreign commerce for business purposes unless such transportation is within the scope, and in furtherance, of a primary business enterprise (other than transportation) of such person.'
4
The United States intervened as defendant, 28 U.S.C. § 2322, 28 U.S.C.A. § 2322, and appellee Weather-Seal and appellant Regular Common Carrier Conference intervened as plaintiff and defendant respectively, 28 U.S.C. § 2323, 28 U.S.C.A. § 2323.
5
Interstate Commerce Act § 203(a)(17), 49 Stat. 545, 49 U.S.C. § 303(a) (17), 49 U.S.C.A. § 303(a)(17):
'The term 'private carrier of property by motor vehicle' means any person not included in the terms 'common carrier by motor vehicle' or 'contract carrier by motor vehicle,' who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise.'
6
49 Stat. 543—567, as amended, 49 U.S.C. §§ 301—327, 49 U.S.C.A. §§ 301—327.
7
See S.Rep. No. 482, 74th Cong., 1st Sess. 2; H.R.Rep. No. 1645, 74th Cong., 1st Sess. 3; S.Doc. No. 152, 73d Cong., 2d Sess. 14—15, 22—23 (Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies).
8
Id., at 14.
9
See S.Rep. No. 482, 74th Cong., 1st Sess. 1; H.R.Rep. No. 1645, 74th Cong., 1st Sess. 4; H.R.Doc. No. 89, 74th Cong., 1st Sess. 17 (Report of Federal Coordinator of Transportation on Transportation Legislation).
10
See notes 2, 5, supra.
11
See note 3, supra.
12
See S.Doc. No. 152, 73d Cong., 2d Sess. 33 (Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies). That concern has found recent legislative expression in a 1958 amendment designed to curb so-called 'buy-sell' evasions by purported or 'pseudo' private carriers. 72 Stat. 568, 574, amending the Interstate Commerce Act § 203(c), 49 U.S.C. § 303(c), 49 U.S.C.A. § 303(c). See S.Rep. No. 1647, 85th Cong., 2d Sess. 23—24; H.R.Rep. No. 1922, 85th Cong., 2d Sess. 17—19.
13
Robinson v. Woodard, 227 Ark. 102, 296 S.W.2d 672.
14
While such a discharge would not automatically terminate the affected driver's truck-lease agreement, it seems obvious that he would immediately exercise his 30-day cancellation privilege and thus remove his truck from Oklahoma's service.
15
In contrast, the short-haul drivers of company-owned tractors received $50 per week plus two cents per mile.
16
The provision of the collective agreement that the owner-drivers 'shall be required to maintain the truck in good running condition' superseded, in the parties' practice, Oklahoma's undertaking in the lease agreement 'to keep and maintain said motor vehicle equipment at all times while in operation under this lease agreement, in first class operating condition and in complete compliance with all safety rules and regulations of all State and Federal regulatory bodies.' See 79 M.C.C., at 406, 407; 193 F.Supp. at 278.
17
Oklahoma paid an extra three cents per mile rental when there was a load of raw materials in the backhaul. This differential was explained as covering the cost of additional wear and tear and fuel purchases occasioned by the heavier raw materials transported on the return trips. At least to the extent that the differential was in fact absorbed by such incremental costs, it cannot be said to have represented the shifting of any financial risk.
18
79 M.C.C., at 415. Appellees assert that there is no presently licensed carrier able or willing to provide the type of service essential to Oklahoma's survival as a competitor. See Brief for Henry E. Drum et al., at 3. That circumstance should be presented to and considered by the I.C.C. in passing on appellees' permit applications; but it is not a reason for bypassing the Commission's licensing power if Oklahoma is not a private carrier.
19
R. 167.
20
79 M.C.C., at 409—410.
21
79 M.C.C., at 411.
22
193 F.Supp. at 281—282.
23
See Brief for the United States and Interstate Commerce Commission at 17, n. 8:
'In this appeal, we do not challenge the district court's conclusion that the evidence did not warrant a finding that Oklahoma lacked full control of the details of the operation. Nor do we argue as to whether the court below gave too narrow a meaning to the Commission's control test. We assume, for present purposes, that the court below correctly applied that test as relating only to the operational aspects of the transportation.'
24
We need not and we do not now pass on the Commission's view that if the shipper does not direct the details of the operation he cannot be a private carrier.
25
The leading case is H. B. Church Truck Service Co., 27 M.C.C. 191, 195:
'Essentially the issue is as to who has the right to control, direct, and dominate the performance of the service. If that right remains in the carrier, the carriage is carriage for hire and subject to regulation. If it rests in the shipper, it is private carriage and not subject to regulation * * *.'
It was the H. B. Church case which established the presumption that a lease of equipment results in for-hire carriage. The presumption was said to 'yield to a showing that the shipper has the exclusive right and privilege of directing and controlling the transportation service, as, for example, if the equipment were operated by the shipper's employee.' 27 M.C.C., at 196.
26
See, e.g., Watson Mfg. Co., 51 M.C.C. 223, 226; R.N.G. Commercial Auto Renters, Inc., 73 M.C.C. 665, 670.
Local 24 of Intern. Broth. of Teamsters, etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, did not, as appellees suggest (Brief for Henry E. Drum et al., at 29), hold that owner-operators are in any sense 'employees.' That case held that a bargaining unit including an overwhelming majority of concededly employed drivers of carrier-owned equipment was entitled, under § 8(d) of the National Labor Relations Act, 61 Stat. 142, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d), to bargain to impasse concerning minimum rentals to be received by owner-drivers. It was not necessary to determine whether the owner-drivers were 'employees' protected by the Act, since the establishment of the minimum rental to them was integral to the establishment of a stable wage structure for clearly covered employee-drivers. See id., at 294 295, 79 S.Ct. at 303—304.
27
See, e.g., Edward Allen Carroll, 1 M.C.C. 788; Centre Trucking Co., 32 M.C.C. 313; William A. Shields, 41 M.C.C. 100; John J. Casale, Inc., 44 M.C.C. 45; Motor Haulage Co., 46 M.C.C. 107; Jacobs Transfer Co., 46 M.C.C. 265; John J. Casale, Inc., 49 M.C.C. 15; R.N.G. Commercial Auto Renters, Inc., 73 M.C.C. 665.
28
See Pacific Diesel Rental Co., 78 M.C.C. 161, 172—173:
'The primary question here * * * can be asked in two forms; namely (1) Is the transportation here involved such that any person or persons other than the purported private carriers have any right to control, direct, and dominate it, or (2) Are any persons here, in substance, engaged in the business of interstate or foreign transportation of property on the public highways for hire? * * * We are convinced here that, even if all the responsibilities of an employer with respect to the driver are assumed by a shipper, the service offered * * * is, in substance, for-hire motor carriage subject to regulation under part II of the act. To hold otherwise would be inconsistent with the remedial purpose of part II and would be in contravention of our duty imposed by Congress. * * * It is evident that, were we to hold that the shipper's assumption (as an employer) of certain responsibilities which more normally fall upon a carrier, transforms an operation which, apart from such assumption, is clearly a for-hire carrier service, into an operation different in substance, we would open the door to unfair and destructive competitive practices contrary to the national transportation policy declared by Congress.'
29
The courts have commonly articulated their plotting of the boundary between private and regulated carriage in leased equipment cases in terms of over-all substance, rather than simply in terms of 'control.' See Georgia Truck System, Inc. v. I.C.C., 5 Cir., 123 F.2d 210, 212 ('(A)ppellant, in substance and in reality, operates a transportation business.'); A. W. Stickle & Co. v. I.C.C., 10 Cir., 128 F.2d 155, 160, 161 (test of 'substance and reality'); Lamb v. I.C.C., 10 Cir., 259 F.2d 358, 360 ('Simply stated (the issue) * * * is who was transporting the goods in question.'); B. & C. Truck Leasing, Inc. v. I.C.C., 10 Cir., 283 F.2d 163, 165 (test of 'substance and effect'); I.C.C. v. Isner, D.C., 92 F.Supp. 582; United States v. La Tuff Transfer Service, D.C., 95 F.Supp. 375; I.C.C. v. Werner, D.C., 106 F.Supp. 497; cf. Bridge Auto Renting Corp. v. Pedrick, 2 Cir., 174 F.2d 733; John J. Casale, Inc. v. United States, 86 F.Supp. 167, 114 Ct.Cl. 599. But cf. Earle v. Babler, 9 Cir., 180 F.2d 1016; Vincze v. I.C.C., 9 Cir., 267 F.2d 577; Motor Haulage Co. v. United States, D.C., 70 F.Supp. 17, affirmed 331 U.S. 784, 67 S.Ct. 1205, 91 L.Ed. 1815; I.C.C. v. Gannoe, D.C., 100 F.Supp. 790; Allen v. United States, D.C., 187 F.Supp. 625.
*
Three judges in the District Court disagreed with the Commission (193 F.Supp. 275) and one of the three Commissioners missented. 79 M.C.C. 403.
1
See also S.Doc. No. 152, 73d Cong., 2d Sess. 33 (1934); H.R.Doc. No. 89, 74th Cong., 1st Sess. 17 (1935); S.Rep. No. 482, 74th Cong., 1st Sess. 1 (1935); H.R.Rep. No. 1645, 74th Cong., 1st Sess. 4 (1935).
2
There has been some quipment rental regulation by the States; whether it is also desirable as a matter of federal policy has yet to be determined by Congress. See Nutting and Kuhn, Motor Carrier Regulation—The Third Phase, 10 U. of Pitt.L.Rev. 477, 487 491 (1949); Note, 39 Ky.L.J. 338 (1951).
3
The relevant statutory provisions are set forth in footnotes 1, 2, 3 and 5 of the Court's opinion. See also U-Drive-It Co. of Pennsylvania, 23 M.C.C. 799; Scott Bros., Inc., 32 M.C.C. 253. In Lease and Interchange of Vehicles by Motor Carriers, 51 M.C.C. 461, 521, the Commission did not premise its authority to regulate lease and interchange practices among common and contract carriers on any authority generally to control vehicles engaged in interstate commerce. The Commission rather inferred from its authority to regulate the transportation offered by common and contract carriers the power to regulate, as well, 'the procurement of transportation.' This conclusion in no way suggests its authority to regulate the rental of vehicles by noncarriers from companies engaged solely in rental activities.
4
See S.Doc. No. 152, 73d Cong., 2d Sess. 26 (1934); Hearings before Senate Committee on Interstate Commerce on the Motor Carrier Act of 1935, 74th Cong., 1st Sess. 333, 345, 347—350 (1935).
5
Short hauls of company products in company-owned and driven equipment remained unaffected by the new arrangement, presumably because there was less opportunity for the misuse of company credit cards in connection with such hauls.
6
The record does not show the terms on which the drivers acquired the tractors, whether they were bought from the Company or others, and if from the Company, what, if any, consideration was paid. The trailers drawn by these tractors continued to be owned by the Company.
7
'The leases provide in substance as follows: (1) the Company shall pay the owner-operator 10¢ a mile for hauling single-axle trailers and 11¢ a mile for hauling tandem-axle trailers, plus an additional 3¢ a mile for back-haul of the Company's raw materials, (2) payments under the agreement shall be made weekly, (3) motor vehicles covered by the agreement shall be operated by an employee of the Company who shall be properly qualified and physically fit in accordance with state and federal regulations, (4) the owner-operator shall pay all operating costs arising from operation of said equipment (gasoline, oil, grease and parts) and shall pay cost of license plates, (5) the Company shall keep and maintain said equipment in first-class operating condition and in compliance with all safety rules and regulations of state and federal regulatory bodies, (6) if owner-operator fails to pay operating cost of equipment, the Company may cancel the agreement or at its option pay the necessary operating costs and charge same to owner-operator's account with the Company, (7) the Company shall have sole control, right of direction, and use of the leased equipment, all property transported by the leased vehicles shall belong to the Company and the Company will not sublease the equipment to any other person, firm or corporation, (8) the Company shall not be liable for wear, tear and depreciation nor for any damage caused to the leased equipment by accident, theft, fire or any other hazard or casualty, (9) the owner-operator shall not be responsible for loss to company equipment, property and cargo, (10) the Company will have the name of the owner-operator endorsed as an additional assured upon its policies of property damage and
public liability insurance covering the operation of motor vehicles, (11) either party may cancel the lease upon giving 30 days' written notice to the other party, (12) the agreement shall remain in full force and effect for one year from date of execution and shall be automatically renewed for further periods of one year unless cancelled in accordance with provisions of the agreement, or terminated by operation of law.
'The Company also entered into a union contract as employer of its drivers. The contract covers both drivers of company-owned vehicles and the owner-operators who usually drive their own tractors and who are also treated by the Company as employees. Although all the drivers do not belong to the union, the terms of the contract apply equally to non-union employees. This contract provides, in pertinent part, as follows: (1) the Company may discharge any employee for cause, (2) the owner-operators shall be paid at the rate of 4.5 cents a mile for driving, 0.25 cents a mile for living expenses, and 0.25 cents a mile for labor in the maintenance of the truck, or a total of 5 cents a mile, and shall be paid 6 cents a mile for back-hauls of raw materials, (3) drivers of companyowned tractors shall receive a basic salary of $50 a week plus 2 cents a mile for driving, (4) owner-operators having driven 75,000 miles during a year in which the contract is in effect shall be entitled to vacation pay computed upon the rate of pay for driving and the average weekly mileage in the preceding year, (5) owner-operators shall maintain their trucks in good running condition at all times, (6) owner-operators shall pay their own living expenses while on the road, (7) the provision of the union contract which guarantees employees 6 hours work or pay if they report for work at their usual or regular time shall not apply to owner-operators.
'The record made before the Commission shows that the operations of the Company and the owner-operators are in substance carried on in accordance with the provisions of the lease agreements and the union contract, with one exception. The lease agreements provide that the Company shall maintain the tractors of the owner-operators and the union contract provides that the owner-operators shall main-
tain them. The testimony in the record supports the Commission's finding that the owner-operators in fact maintain their vehicles.
'The record also reveals the following: The owner-operators are not authorized by the Interstate Commerce Commission to engage in the transportation of property either as contract carriers or common carriers by motor vehicle in interstate commerce. The Company uses the 6 tractors which it owns chiefly for short hauls and these are usually driven by the salaried company drivers. The tractors leased by the Company are utilized chiefly for long hauls and are usually operated by the owner-operators, each driving his own tractor. It is the practice of the Company to assign the same driver to the same equipment, regardless of whether it is company-owned or leased. However, when necessity or convenience make it more feasible to do so, drivers who usually drive company-owned tractors are assigned to leased tractors and owner-operators to company-owned tractors. All trailers used in the Company's operations are owned by it. A supervisor employed by the Company oversees all drivers, assigns trips and checks to see that all equipment is properly maintained and repaired. Detailed routing instructions are issued to all drivers and compliance therewith is insured by manner of loading, e.g., last goods to come off are loaded first and the first to come off are loaded last. Prior to departure drivers are handed a truck bill manifest which differs from a bill of lading in that the drivers are not required to sign a receipt for the freight they transport. Each owner-operator receives two weekly paychecks, one for rental of his tractor and the other for his service as a driver. The Company deducts from the paychecks of the owner-operators social security and withholding taxes, pays the employer's share of social security and provides workmen's compensation benefits for them. The Company maintains on file drivers' logs, physicians' certificates and vehicle inspection reports. Both company-owned tractors and leased tractors are garaged at the homes of their respective drivers. The Company has the right to hire and fire drivers independently of the lease agreement.' 193 F.Supp., at 277 278.
8
See generally O'Brien, Twenty-Five Years of Federal Motor Carrier Licensing—The Private Versus For-Hire Carrier Problem, 35
N.Y.U.L.Rev. 1150 (1960); Matthews, Truck Leasing By Shippers and the Problem of the Dangling Instrumentalities, 27 I.C.C.Prac.J. 370 (1960); Porter, Federal Regulation of Private Carriers, 64 Harv.L.Rev. 896 (1951).
9
But see note 6, supra.
10
To the extent that this second 'risk' concerns personal living expenses on the road, it would be unrealistic to consider it a 'risk' at all, since the cost of it was assumed, albeit at a flat rate of one-fourth cent per mile, by the Company under the terms of a collective-bargaining agreement with the labor union representing the drivers.
11
Compare Consolidated Trucking, Inc., 41 M.C.C. 737; Jacobs Transfer Co., 46 M.C.C. 265 (shippers' control over routing and dispatching held insufficient to constitute private carriage).
12
Since some equipment rental firms pay for liability insurance, the financial burden assumed by the appellees here may even have been less than that assumed by equipment rental firms.
13
The Commission does not consider itself bound by the form in which wage payments are made and occasionally considers who it is who actually bears the wage burden. See Roy Rittenhouse, 78 M.C.C. 389. But even this factor is not always determinative. Pacific Diesel Rental Co., 78 M.C.C. 161.
14
The reasons for differentiating between long and short hauls, as repects the ownership of the tractors used in each type of service, have already been given. Supra, note 5.
15
E.g., 69 I.C.C.Ann.Rep. 99; 72 I.C.C.Ann.Rep. 43; 73 I.C.C.Ann.Rep. 51; 74 I.C.C.Ann.Rep. 57—58. A thorough study of the 'gray area'—defined as 'transport operations which lie between legitimate private carriage and the transportation authorized by Government regulatory bodies'—was recently submitted to the Senate Committee on Interstate and Foreign Commerce by the Commission's Bureau of Transport Economics and Statistics. It recognized that one major type of operation conducted in order to avoid regulation was the 'shipper lease of vehicle with driver.' I.C.C., Bureau of Transport Economics and Statistics, Gray Area of Transportation Operations (1960), 27—37.
16
In a leading decision the Commission set down a rule whereby 'in cases in which the question of the status created by a lease of equipment with drivers by a carrier to a shipper is presented, in the absence of a showing to the contrary, the presumption arises that the transportation is performed by the carrier for compensation, in other words is for-hire transportation and as such is subject to regulation.' H. B. Church Truck Service, 27 M.C.C. 191, 196. I do not quarrel with the general validity of this presumption, although, until the present case, even the Commission thought it applicable only to leases by those who were otherwise 'for-hire' carriers. John J. Casale, Inc., 44 M.C.C. 45, 52—53. It is only because the 'showing to the contrary' in this instance is so overwhelming that I think it was impermissible for the Commission to apply that rule here.
17
The Company here assumed the full cost of an unproductive backhaul, since it paid its drivers for their tractors and their services whether the trailer returned empty or full. If the backhaul was productive, four cents per mile was added to the total payment, possibly as compensation for increased wear-and-tear and more rigorous duties. Although a lease of equipment may, under certain circumstances, require a lessee to return the vehicle to the location where it was first taken, large rental firms do provide for one-way leases at slightly increased rates. The Company might, therefore, well have been able to reduce its loss on an unproductive backhaul by leasing equipment on terms which would have permitted it to return the equipment at the destination.
| 78
|
368 U.S. 401
82 S.Ct. 423
7 L.Ed.2d 382
NATIONAL LABOR RELATIONS BOARDv.LOCAL 476, PLUMBING AND PIPEFITTING, AFL-CIO et al.
No. 39.
Decided Jan. 15, 1962.
Solicitor General Rankin, Stuart Rothman, Dominick L. Manoli and Norton J. Come, for petitioner.
Martin F. O'Donoghue, for respondents.
PER CURIAM.
1
The petition for a writ of certiorari is granted. In unfair labor practice proceedings before the National Labor Relations Board respondents did not except to the terms of an order directing them to cease-and-desist from certain practices found to violate § 8(b)(4)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A), as regards the employees of a named employer 'or any other employer' where an object is to force or require the named employer 'or any other employer or person' to cease doing business with a named primary contractor. The Court of Appeals in enforcement proceedings modified the order, among other ways, by striking the references to 'any other employer' and to 'any other employer or person.' 283 F.2d 26, 28. The judgment of the Court of Appeals is reversed and the case is remanded with directions that a judgment be entered which affirms and enforces the Board order after restoring these deleted provisions. National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739; § 10(e), 49 Stat. 454, as amended, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e); see also National Labor Relations Board v. Ochoa Fertilizer Corp., 368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312.
2
Petition granted.
| 89
|
368 U.S. 360
82 S.Ct. 431
7 L.Ed.2d 353
FEDERAL TRADE COMMISSION, Petitioner,v.HENRY BROCH & COMPANY.
No. 74.
Argued Nov. 16, 1961.
Decided Jan. 15, 1962.
Sol. Gen. Archibald Cox, Washington, D.C., for the petitioner.
Frederick M. Rowe, Washington, D.C., for the respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Federal Trade Commission seeks reversal of the action of the Court of Appeals for the Seventh Circuit in modifying the cease-and-desist order which the Commission had issued against the respondent Broch on finding that Broch violated § 2(c) of the Clayton Act.1 285 F.2d 764. The action of the Court of Appeals was sua sponte, and was taken in proceedings on remand which followed our reversal of that Court's earlier action setting aside the order in its entirety because Broch's conduct was thought not to violate § 2(c).2 Federal Trade Comm'n v. Broch & Co., 363 U.S. 166, 80 S.Ct. 1158, 4 L.Ed.2d 1124, reversing 7 Cir., 261 F.2d 725. We granted certiorari, 366 U.S. 923, 81 S.Ct. 1350, 6 L.Ed.2d 383.
2
Broch is a broker selling food products on commission for some 25 seller principals. One of his principals is Canada Foods, Ltd., a processor of apple concentrate. The Commission found that Broch, to make possible Canada Foods' acceptance of an offer from J. M. Smucker Co. to buy an unusually large quantity of apple concentrate at less than Canada Foods' established price, reduced to 3%, for this sale, the agreed 5% rate of commission ordinarily payable by Canada Foods to Broch.3 The Commission adjudged, and in our prior opinion we agreed, that this action of Broch was, in the circumstances, a violation of § 2(c).
3
The Commission's order was not confined to restraints against repetition of the precise violation of § 2(c) which Broch was found to have committed, nor was the application of the order limited to future sales from Canada Foods to Smucker.4 Paragraph (1) did prohibit the repetition of the particular violation which Broch committed, but in connection with sales for Canada Foods, or for 'any other seller principal,' to Smucker, or 'to any other buyer.' Paragraph (2) also extended its prohibitions to sales from all seller principals to all buyers, but went beyond paragraph (1) to prohibit Broch from 'In any other manner * * * directly or indirectly' paying, granting or allowing, in the words of § 2(c), 'anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof * * *.' The Court of Appeals excised from the order all references to 'any other seller principal' and to 'any other buyer,' thus limiting the order's application to future sales from Canada Foods to Smucker.
4
The Commission renews here the argument it made in the Court of Appeals that judicial modification of the order was precluded because Broch failed to object to the scope of the order before the Commission. Broch disputes that he failed to register a proper objection before the Commission. We see no reason to determine the fact. We will assume, without deciding, that the Court of Appeals properly passed upon the scope of the order. We nevertheless think that in the circumstances of this case the order should have been affirmed in the form entered by the Commission.
5
Broch supports the action of the Court of Appeals as to paragraph (1) of the order with the argument that, since the order was based only upon findings limited to an asserted illegal payment respecting a single sale from Canada Foods to Smucker, the Commission's ban was too sweeping in its application to sales from all seller principals to all buyers. There is no merit in this argument. The Commission has a wide discretion to formulate a remedy adequate to prevent Broch's repetition of the violation he was found to have committed. See Jacob Siegel Co. v. Federal Trade Comm., 327 U.S. 608, 611—612, 66 S.Ct. 758, 759—760, 90 L.Ed. 888. We cannot say that the Commission exceeded its discretion in banning repetitions of Broch's violation in connection with transactions involving any seller and buyer, rather than simply forbidding recurrence of the transgression in sales between Canada and Smucker. Federal Trade Comm. v. Cement Institute, 333 U.S. 683, 728—729, 68 S.Ct. 793, 816—817, 92 L.Ed. 1010. Compare United States v. United States Gypsum Co., 340 U.S. 76, 90, 71 S.Ct. 160, 170, 95 L.Ed. 89.
6
Broch further argues that the Commission exceeded its discretion in the prohibitions embodied in paragraph (2). He did not cross-petition this Court for a writ of certiorari and does not here challenge paragraph (2) as modified by the Court of Appeals. Had the only vice claimed in paragraph (2) been its extension to all seller principals and all buyers, the Court of Appeals' sua sponte amendment would for reasons already stated have been clearly erroneous. But Broch contends that, before it was restricted to transactions involving Canada and Smucker, this part of the order was so broad as to jeopardize the conduct of his entire business, in that it unqualifiedly prohibited reductions of commissions coupled with lower prices—even uniform reductions, or reductions which are service- or cost-justified, or reductions for the purpose of meeting competition.
7
In considering Broch's challenge to paragraph (2) it is necessary to observe that the 1959 amendments to § 11 of the Clayton Act—which substitute for the Clayton Act provisions for enforcement of administrative orders those in § 5 of the Federal Trade Commission Act, 15 U.S.C.A. § 45—do not apply to enforcement of the instant order.5 In consequence, Broch cannot be subjected to penalties except for violation of an enforcement order yet to be entered by an appropriate Court of Appeals, to be predicated upon a determination that some particular practice of Broch violated the Commission's order. Thus Broch is not, by virtue of that order, presently acting under the risk of incurring any penalty without further administrative and judicial consideration and interpretation, despite the fact that he has already received determination of his petition for review. Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470, 477—480, 72 S.Ct. 800, 805—806, 96 L.Ed. 1081.6
8
Upon any future enforcement proceeding, the Commission and the Court of Appeals will have ready at hand interpretive tools the employment of which we have previously sanctioned—for use in tailoring the order, in the setting of a specific asserted violation, so as to meet the legitimate needs of the case. They will be free to construe the order as designed strictly to cope with the threat of future violations identical with or like or related to the violations which Broch was found to have committed,7 or as forbidding 'no activities except those which if continued would directly aid in perpetuating the same old unlawful practices.' Federal Trade Comm. v. Cement Institute, 333 U.S. 683, 727, 68 S.Ct. 793, 816. They need not—as we have already made clear—read the order as denying to Broch the benefit of statutory defenses or exceptions. Federal Trade Comm. v. Ruberoid Co., supra, 343 U.S. at 475—476, 72 S.Ct. at 804—805; Federal Trade Comm. v. National Lead Co., 352 U.S. 419, 426, 77 S.Ct. 502, 507.8 Nor need the order be construed as prohibiting anything as clearly lawful as a uniform reduction in commissions.9 And, we repeat, these various interpretive aids will have to be brought to bear by a Court of Appeals upon a particular practice of Broch, and will have to yield the announced result that such practice violates the order, before Broch can be subjected to penalties because of still a second repetition of the violation.
9
In this situation, and on this record, we hold that the attempt of the Court of Appeals to redress the asserted overbroadness by the inapt device of confining paragraph (2) to Canada's sales to Smucker was inappropriate and, indeed, any attempt to restrict the scope of the order would have been premature.
10
We do not wish to be understood, however, as holding that the generalized language of paragraph (2) would necessarily withstand scrutiny under the 1959 amendments.10 The severity of possible penalties prescribed by the amendments for violations of orders which have become final underlines the necessity for fashioning orders which are, at the outset, sufficiently clear and precise to avoid raising serious questions as to their meaning and application.11 See National Labor Relations Board v. Express Pub. Co., 312 U.S. 426, 435—437, 61 S.Ct. 693, 699—700, 85 L.Ed. 930; Federal Trade Comm. v. Cement Institute, 333 U.S. 683, 726, 68 S.Ct. 793, 815; Federal Trade Comm. v. Morton Salt Co., 334 U.S. 37, 54, 68 S.Ct. 822, 832. Compare New York, New Haven & Hartford R. Co. v. Interstate Commerce Comm., 200 U.S. 361, 404, 26 S.Ct. 272, 282, 50 L.Ed. 515; Swift & Co. v. United States, 196 U.S. 375, 400—401, 25 S.Ct. 276, 281, 49 L.Ed. 518.
11
The judgment of the Court of Appeals is reversed and the case is remanded with direction to affirm the order of the Federal Trade Commission.
12
It is so ordered.
13
Mr. Justice BLACK concurs in the result.
14
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
15
On the Court's assumption that the Court of Appeals had power, sua sponte, to modify the decree, I would affirm. This Court reversed the judgment of the Court of Appeals on the prior appeal largely on the very narrow ground that petitioner's 'reduction in brokerage was made to obtain this particular order and this order only * * *,' 363 U.S. 166, 176, 80 S.Ct. 1158, 1164, 4 L.Ed.2d 1124, and therefore the Court of Appeals was justified in limiting the Commission's order accordingly.
16
When its attention is focused to the appropriateness of the scope of an order to restrain illegality, the Commission has shown responsible awareness of the difference in shaping its order to a situation like the one presented by this case, to wit: a specific, closely confined illegality as distinguished from a widespread illegal practice inimical to the public interest. See opinion of the Commission in In re Colgate-Palmolive Co. and Ted Bates & Co., Docket No. 7736, December 29, 1961, CCH Trade Reg.Rep., 15,643, pp. 20,474, 20,485. So, too, has the United States Court of Appeals for the Second Circuit shown responsive awareness and appreciation of that distinctive difference. Swanee Paper Corp. v. Federal Trade Comm., 291 F.2d 833, 837—838.
1
Section 2(c) as amended by the Robinson-Patman Act, 49 Stat. 1527, 15 U.S.C. § 13(c), 15 U.S.C.A. § 13(c), is as follows:
'(c) Payment or acceptance of commission, brokerage or other compensation.
'It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.'
2
Following the remand Broch filed a motion which sought, inter alia, a modification of the order on the ground of its allegedly 'unduly broad scope.' In opposing the motion the Commission claimed that Broch had not objected to the scope of the order in the proceedings before the Commission or in the original review proceedings, and was therefore not entitled to have the Court entertain the motion. Broch's motion was denied but the order embodying the denial also included the provision questioned here amending the order 'On the Court's own motion.'
3
There was evidence in the proceedings before the Commission that, following the transaction described above, Broch continued to sell apple concentrate to Smucker on behalf of Canada Foods at a reduced price and to receive a reduced commission of 3% on such sales.
4
The Commission's order was as follows:
'It is ordered That respondents Henry Broch and Oscar Adler, copartners trading as Henry Broch & Co., their representatives, agents, or employees, directly or through any corporate or other device, in connection with the sale of food or food products for Canada Foods Ltd., or any other seller principal, in commerce, as 'commerce' is defined in the Clayton Act, as amended, do forthwith cease and desist from:
'(1) Paying, granting or allowing, directly or indirectly, to The J. M. Smucker Co., or to any other buyer, or to anyone acting for or in behalf of or who is subject to the direct or indirect control of such buyer, any allowance or discount in lieu of brokerage, or any part or percentage thereof, by selling any food or food products to such buyer at prices reflecting a reduction from the prices at which sales of such foods are currently being effected by respondents for Canada Foods Ltd. or any other seller principal, as the case may be, where such reduction in price is accompanied by a reduction in the regular rate of commission, brokerage or other compensation currently being paid to respondents by such seller principal for brokerage services; or
'(2) In any other manner, paying, granting or allowing, directly or indirectly, to The J. M. Smucker Co., or to any other buyer, or to anyone acting for or in behalf of or who is subject to the direct or indirect control of such buyer, anything of value as a commission, brokerage or other compensation or any allowance or discount in lieu thereof upon, or in connection with, any sale of food or food products to such buyer for its own account.'
5
38 Stat. 734, 15 U.S.C. § 21, as amended July 23, 1959, Pub.L. 86—107, 73 Stat. 243, 15 U.S.C.A. § 21. The order herein was entered by the Commission on December 10, 1957. The procedures enacted by the 1959 amendments therefore do not apply to it. See Sperry Rand Corp. v. Federal Trade Comm., 110 U.S.App.D.C. 1, 288 F.2d 403.
6
The 1959 Amendments resulted from a congressional conclusion that the former § 11 procedures were too cumbersome to assure effective enforcement of agency orders. It was said in the House Committee Report accompanying the 1959 amendments:
'The Clayton Act, in its present enforcement procedures, permits a person to engage in the same illegal practices three times before effective legal penalties can be applied as a result of action by the commission or board vested with jurisdiction. First, in order to issue and serve a cease-and-desist order initially, the commission or board must investigate and prove that the respondent has violated the prohibitions of the Clayton Act. No provision of the Clayton Act, however, makes the commission or board's cease-and-desist order final in the absence of an appeal by the respondent for judicial review. At the present time, the Clayton Act contains no procedure by which the commission or board may secure civil penalties for violations of its orders.
'Second, before the commission or board may obtain a court ruling that commands obedience to its cease-and-desist order, it must again investigate and prove that the respondent has violated both the order and the Clayton Act. The jurisdiction of the court of appeals, under the present provisions of Clayton Act section 11, cannot be invoked by the commission or board unless a violation of the cease-and-desist order is first shown.
'Third, enforcement of the court's order must be secured in a subsequent contempt proceeding, which requires proof that new activities of the respondent have violated the court's order. This entails a third hearing before the commission and a review thereof by the court of appeals.
'In contrast, the procedures that are contained in the Federal Trade Commission Act for enforcement of cease-and-desist orders issued thereunder are much simpler and more direct. A cease-and-desist order issued pursuant to section 5 of the Federal Trade Commission Act, as amended, becomes final upon the expiration of the time allowed for filing a petition for review, if no such petition is filed within that time.' H.R.Rep. No. 580, 86th Cong., 1st Sess. 4, U.S.Code Cong. and Adm.News 1959, p. 1805. See also S.Rep. No. 83, 86th Cong., 1st Sess. 2—3.
7
Cf. Federal Trade Comm. v. Morton Salt Co., 334 U.S. 37, 51—53, 68 S.Ct. 822, 830—831, 92 L.Ed. 1196; Federal Trade Comm. v. National Lead Co., 352 U.S. 419, 430—431, 77 S.Ct. 502, 509 510, 1 L.Ed.2d 438. 'In carrying out (its) function the Commission is not limited to prohibiting the illegal practice in the precise form in which it is found to have existed in the past. If the Commission is to attain the objectives Congress envisioned, it cannot be required to confine its road block to the narrow lane the transgressor had traveled; it must be allowed effectively to close all roads to the prohibited goal, so that its order may not be by-passed with impunity.' Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803.
8
Broch complains of the order's omission of any reference to the statutory exception for brokerage 'for services rendered in connection with the sale or purchase of goods * * *.' We made it clear in our prior opinion that the order need not be read as prohibiting transactions to which the statutory exception applies. 363 U.S., at 173, 177, n. 19, 80 S.Ct., at 1162, 1164. Nor need the order, when viewed in the context of Broch's violation, be read as prohibiting Broch from reducing commissions competitively to gain a particular buyer's account, if the competitive setting would otherwise have afforded a defense to a charge under § 2(c).
9
'Had respondent * * * agreed to accept a 3% commission on all sales to all buyers there plainly would be no room for finding that the price reductions were violations of 2(c). Neither the legislative history nor the purposes of the Act would require such an absurd result, and neither the Commission nor the courts have ever suggested it.' 363 U.S., at 176, 80 S.Ct., at 1164.
10
See notes 5, 6, supra.
11
The penalties under the 1959 amendments are as follows:
'Any person who violates any order issued by the commission or board under subsection (b) of this section after such order has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $5,000 for each violation * * *. Each separate violation of any such order shall be a separate offense, except that in the case of a violation through continuing failure or neglect to obey a final order of the commission or board each day of continuance of such failure or neglect shall be deemed a separate offense.'
| 78
|
368 U.S. 400
82 S.Ct. 430
7 L.Ed.2d 380
NATIONAL LABOR RELATIONS BOARDv.LAS VEGAS SAND & GRAVEL CORP.
No. 38.
Decided Jan. 15, 1962.
Solicitor General Rankin, Stuart Rothman, Dominick L. Manoli and Norton J. Come, for petitioner.
PER CURIAM.
1
The petition for a writ of certiorari is granted. The respondent consented to the entry by the National Labor Relations Board of an order directing it to cease-and-desist from interfering with activities of its employees on behalf of a named labor organization 'or of any other labor organization.' The respondent further waived all defenses to the entry by the Court of Appeals of a decree enforcing said order. The Court of Appeals, sua sponte, struck the references to 'any other labor organization' whenever they appeared in the Board's order. 283 F.2d 26, 28. The judgment of the Court of Appeals is reversed and the case is remanded with directions that a judgment be entered which affirms and enforces the Board order. Labor Board v. Ochoa Fertilizer Corp., 368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312.
2
Petition granted.
3
Mr. Justice DOUGLAS, dissents.
| 89
|
368 U.S. 439
82 S.Ct. 462
7 L.Ed.2d 429
Harold R. MITCHELLv.UNITED STATES.
No. 448, Misc.
Decided Jan. 22, 1962.
John Bodner, Jr., for petitioner.
Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg, for the United States.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari, which presents the question whether materially false testimony was used against petitioner at the trial, are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for a hearing upon petitioner's motion, treated as a motion for a new trial on the ground of newly discovered evidence. Cf. Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1. We, of course, intimate no view upon the merits of the motion.
2
Motion granted.
3
Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
4
The Court sua sponte summarily vacates this judgment affirming the denial of a $2255 application and remands the matter for a hearing, treating the case as one involving a motion for a new trial on the ground of newly discovered evidence. I characterize the application below, titled a 'Motion for Reversal of Verdict and Dismissal of Sentence,' as one under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 not only because of its wording but also because the petitioner, the Government, the trial court, and the Court of Appeals (including the dissenting judge) so styled it. Although petitioner in the alternative contends that the wording of this application could serve as 'notice of appeal,' he never suggests it should be treated as a motion for a new trial. If petitioner had intended the application in question to serve as a motion for a new trial, he would have so labeled it as he did the motion filed four days after the verdict. The Court, despite this treatment by all the parties and judges below, tags the application as a motion for a new trial on the ground of newly discovered evidence in order to escape the limitations of § 2255. I cannot give this pleading such a twist, but even if I could I would have to find the allegations insufficient to meet the requirements of Rule 33, which governs motions for new trials.
5
The newly discovered evidence consists of an affidavit by Police Captain Brown which merely corroborates the testimony of petitioner and another witness. It appears that during the investigation of the robbery in question the petitioner and one Adcock were placed in a police line-up supervised by Police Captain Brown. From this line-up Ellis, one of the victims, identified Adcock as the robber. On trial Ellis testified that his identification was not positive and that he only picked Adcock as one who resembled the robber. Both Adcock and petitioner, however, testified that Ellis had positively identified Adcock in the line-up. There is no contention or showing that the Government knew that Ellis' testimony was false. Brown's affidavit was obtained while the case was pending in the Court of Appeals.
6
The affidavit, of course, was not newly discovered evidence. Both Adcock and the petitioner were in the line-up, and both knew that Police Captain Brown was likewise present and saw and heard Ellis' identification. In such a situation petitioner's motion for a new trial would be untimely because Rule 33, Fed.Rules Crim.Proc., 18 U.S.C.A., permits such a motion to be made more than five days after a verdict of guilty only in the case of newly discovered evidence. However, even if the facts in the affidavit were newly discovered, it would still not be sufficient under Rule 33. As was said in Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1, 'new evidence which is 'merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial. (Citing cases.)'
7
On the other hand, if the Court treats the application as one under § 2255, it is insufficient. Under that section the application would be a collateral attack on the conviction. In such a case it is essential for the moving party to establish not only that perjury existed but also that the prosecution used the testimony knowingly and wilfully to obtain a conviction. E.g., Griffin v. United States, 103 U.S.App.D.C. 317, 258 F.2d 411 (1958); Tilghman v. Hunter, 167 F.2d 661 (C.A.10th Cir. 1948). This longstanding limitation was not erased by Mesarosh v. United States, supra, which involved a direct attack on the conviction rather than a collateral attack.
8
I regret that the Court, in an effort to avoid the requirements of § 2255, treats an application thereunder as a motion for a new trial. In my view this is a new approach to § 2255 cases. It extends that section far beyond its intended scope and can only plague us in future cases. I therefore dissent.
| 01
|
368 U.S. 403
82 S.Ct. 451
7 L.Ed.2d 403
Isadore BLAU, etc., Petitioner,v.Robert LEHMAN et al.
No. 66.
Argued Dec. 12 and 13, 1961.
Decided Jan. 22, 1962.
Morris J. Levy, New York City, for the petitioner.
Allan F. Conwill, Washington, D.C., for the Securities and Exchange Commission, as amicus curiae, by special leave of Court.
Whitney North Seymour, New York City, for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
The petitioner Blau, a stockholder in Tide Water Associated Oil Company, brought this action in a United States District Court on behalf of the company under § 16(b)1 of the Securities Exchange Act of 1934 to recover with interest 'short swing' profits, that is, profits earned within a six months' period by the purchase and sale of securities, alleged to have been 'realized' by respondents in Tide Water securities dealings. Respondents are Lehman Brothers, a partnership engaged in investment banking, the securities brokerage and in securities trading for its own account, and Joseph A. Thomas, a member of Lehman Brothers and a director of Tide Water. The complaint alleged that Lehman Brothers 'deputed * * * Thomas, to represent its interests as a director on the Tide Water Board of Directors,' and that within a period of six months in 1954 and 1955 Thomas, while representing the interests of Lehman Brothers as a director of Tide Water and 'by reason of his special and inside knowledge of the affairs of Tide Water, advised and caused the defendants, Lehman Brothers, to purchase and sell 50,000 shares of * * * stock of Tide Water, realizing profits thereon which did not inure to and (were) not recovered by Tide Water.'
2
The case was tried before a district judge without a jury. The evidence showed that Lehman Brothers had in fact earned profits out of short-swing transactions in Tide Water securities while Thomas was a director of that company. But as to the charges of deputization and wrongful use of 'inside' information by Lehman Brothers, the evidence was in conflict.
3
First, there was testimony that respondent Thomas had succeeded Hertz, another Lehman partner, on the board of Tide Water; that Hertz had 'joined Tidewater Company thinking it was going to be in the interests of Lehman Brothers'; and that he had suggested Thomas as his successor partly because it was in the interest of Lehman. There was also testimony, however, that Thomas, aside from having mentioned from time to time to some of his partners and other people that he thought Tide Water was 'an attractive investment' and under 'good' management, had never discussed the operating details of Tide Water affairs with any member of Lehman Brothers;2 that Lehman had bought the Tide Water securities without consulting Thomas and wholly on the basis of public announcements by Tide Water that common shareholders could thereafter convert their shares to a new cumulative preferred issue; that Thomas did not know of Lehman's intent to buy Tide Water stock until after the initial purchases had been made; that upon learning about the purchases he immediately notified Lehman that he must be excluded from 'any risk of the purchase or any profit or loss from the subsequent sale'; and that this disclaimer was accepted by the firm.3
4
From the foregoing and other testimony the District Court found that 'there was no evidence that the firm of Lehman Brothers deputed Thomas to represent its interests as director on the board of Tide Water' and that there had been no actual use of inside information, Lehman Brothers having bought its Tide Water stock 'solely on the basis of Tide Water's public announcements and without consulting Thomas.'
5
On the basis of these findings the District Court refused to render a judgment, either against the partnership or against Thomas individually, for the $98,686.77 profits which it determined that Lehman Brothers had realized,4 holding:
6
'The law is now well settled that the mere fact that a partner in Lehman Brothers was a director of Tide Water, at the time that Lehman Brothers had this short swing transaction in the stock of Tide Water, is not sufficient to make the partnership liable for the profits thereon, and that Thomas could not be held liable for the profits realized by the other partners from the firm's short swing transactions. Rattner v. Lehman, 2 Cir., 1952, 193 F.2d 564, 565, 567. This precise question was passed upon in the Rattner decision.' 173 F.Supp. 590, 593.
7
Despite its recognition that Thomas had specifically waived his share of the Tide Water transaction profits, the trial court nevertheless held that within the meaning of § 16(b) Thomas had 'realized' $3,893.41, his proportionate share of the profits of Lehman Brothers. The court consequently entered judgment against Thomas for that amount but refused to allow interest against him. On appeal, taken by both sides, the Court of Appeals for the Second Circuit adhered to the view it had taken in Rattner v. Lehman, 193 F.2d 564, and affirmed the District Court's judgment in all respects, Judge Clark dissenting. 286 F.2d 786. The Securities and Exchange Commission then sought leave from the Court of Appeals en banc to file an amicus curiae petition for rehearing urging the overruling of the Rattner case. The Commission's motion was denied, Judges Clark and Smith dissenting. We granted certiorari on the petition of Blau, filed on behalf of himself, other stockholders and Tide Water, and supported by the Commission. 366 U.S. 902, 81 S.Ct. 1048, 6 L.Ed.2d 202. The questions presented by the petition are whether the courts below erred: (1) in refusing to render a judgment against the Lehman partnership for the $98,686.77 profits they were found to have 'realized' from their 'short-swing' transactions in Tide Water stock, (2) in refusing to render judgment against Thomas for the full $98,686.77 profits, and (3) in refusing to allow interest on the $3,893.41 recovery allowed against Thomas.5
8
Petitioner apparently seeks to have us decide the questions presented as though he had proven the allegations of his complaint that Lehman Brothers actually deputized Thomas to represent its interests as a director of Tide Water, and that it was his advice and counsel based on his special and inside knowledge of Tide Water's affairs that caused Lehman Brothers to buy and sell Tide Water's stock. But the trial court found otherwise and the Court of Appeals affirmed these findings. Inferences could perhaps have been drawn from the evidence to support petitioner's charges, but examination of the record makes it clear to us that the findings of the two courts below were not clearly erroneous. Moreover, we cannot agree with the Commission that the courts' determinations of the disputed factual issues wee conclusions of law rather than findings of fact. We must therefore decide whether Lehman Brothers, Thomas or both have an absolute liability under § 16(b) to pay over all profits made on Lehman's Tide Water stock dealings even though Thomas was not sitting on Tide Water's board to represent Lehman and even though the profits made by the partnership were on its own initiative, independently of any advice or 'inside' knowledge given it by director Thomas.
9
First. The language of § 16 does not purport to impose its extraordinary liability on any 'person,' 'fiduciary' or not, unless he or it is a 'director,' 'officer' or 'beneficial owner of more than 10 per centum of any class of any equity security * * * which is registered on a national securities exchange.'6 Lehman Brothers was neither an officer nor a 10% stockholder of Tide Water, but petitioner and the Commission contend that the Lehman partnership is or should be treated as a director under § 16(b).
10
(a) Although admittedly not 'literally designated' as one, it is contended that Lehman is a director. No doubt Lehman Brothers, though a partnership, could for purposes of § 16 be a 'director' of Tide Water and function through a deputy, since § 3(a)(9) of the Act7 provides that "person' means * * * partnership' and § 3(a)(7)8 that "director' means any direct or of a corporation or any person performing similar functions with respect to any organization, whether incorporated or unincorporated.' Consequently, Lehman Brothers would be a 'director' of Tide Water, if as petitioner's complaint charged Lehman actually functioned as a director through Thomas, who had been deputized by Lehman to perform a director's duties not for himself but for Lehman. But the findings of the two courts below, which we have accepted, preclude such a holding. It was Thomas, not Lehman Brothers as an entity, that was the director of Tide Water.
11
(b) It is next argued that the intent of § 3(a)(9) in defining 'person' as including a partnership is to treat a partnership as an inseparable entity.9 Because Thomas, one member of this inseparable entity, is an 'insider,'10 it is contended that the whole partnership should be considered the 'insider.' But the obvious intent of § 3(a)(9), as the Commission apparently realizes, is merely to make it clear that a partnership can be treated as an entity under the statute, not that it must be. This affords no reason at all for construing the word 'director' in § 16(b) as though it read 'partnership of which the director is a member.' And the fact that Congress provided in § 3(a) (9) for a partnership to be treated as an entity in its own right likewise offers no support for the argument that Congress wanted a partnership to be subject to all the responsibilities and financial burdens of its members in carrying on their other individual business activities.
12
(c) Both the petitioner and the Commission contend on policy grounds that the Lehman partnership should be held liable even though it is neither a director, officer, nor a 10% stockholder. Conceding that such an interpretation is not justified by the literal language of § 16(b) which plainly limits liability to directors, officers, and 10% stockholders, it is argued that we should expand § 16(b) to cover partnerships of which a director is a member in order to carry out the congressionally declared purpose 'of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer * * *.' Failure to do so, it is argued, will leave a large and unintended loophole in the statute—one 'substantially eliminating the great Wall Street trading firms from the statute's operation.' 286 F.2d, at 799. These firms it is claimed will be able to evade the Act and take advantage of the 'inside' information available to their members as insiders of countless corporations merely by trading 'inside' information among the various partners.
13
The argument of petitioner and the Commission seems to go so far as to suggest that § 16(b)'s forfeiture of profits should be extended to include all persons realizing 'short swing' profits who either act on the basis of 'inside' information or have the possibility of 'inside' information. One may agree that petitioner and the Commission present persuasive policy arguments that the Act should be broadened in this way to prevent 'the unfair use of information' more effectively than can be accomplished by leaving the Act so as to require forfeiture of profits only by those specifically designated by Congress to suffer those losses.11 But this very broadening of the categories of persons on whom these liabilities are imposed by the language of § 16(b) was considered and rejected by Congress when it passed the Act. Drafts of provisions that eventually became § 16(b) not only would have made it unlawful for any director, officer or 10% stockholder to disclose any confidential information regarding registered securities, but also would have made all profits received by anyone, 'insider' or not, 'to whom such unlawful disclosure' had been made recoverable by the company.12
14
Not only did Congress refuse to give § 16(b) the content we are now urged to put into it by interpretation, but with knowledge that in 1952 the Second Circuit Court of Appeals refused, in the Rattner case, to apply § 16(b) to Lehman Brothers in circumstances substantially like those here, Congress has left the Act as it was.13 And so far as the record shows this interpretation of § 16(b) was the view of the Commission until it intervened last year in this case. Indeed in the Rattner case the Court of Appeals relied in part on Commission Rule X—16A—3(b) which required insider-partners to report only the amount of their own holdings and not the amount of holdings by the partnership. While the Commission has since changed this rule to require disclosure of partnership holdings too, its official release explaining the change stated that the new rule was 'not intended as a modification of the principles governing liability for short-swing transactions under Section 16(b) as set forth in the case of Rattner v. Lehman. * * *'14 Congress can and might amend § 16(b) if the Commission would present to it the policy arguments it has presented to us, but we think that Congress is the proper agency to change an interpretation of the Act unbroken since its passage, if the change is to be made.
15
Second. The petitioner and the Commission contend that Thomas should be required individually to pay to Tide Water the entire $98,686.77 profit Lehman Brothers realized on the ground that under partnership law he is co-owner of the entire undivided amount and has therefore 'realized' it all. '(O)nly by holding the partner-director liable for the entire short-swing profits realized by his firm,' it is urged, can 'an effective prophylactic to the stated statutory policy * * * be fully enforced.' But liability under § 16(b) is to be determined neither by general partnership law nor by adding to the 'prophylactic' effect Congress itself clearly prescribed in § 16(b). That section leaves no room for judicial doubt that a director is to pay to his company only 'any profit realized by him' from short-swing transactions. (Emphasis added.) It would be nothing but a fiction to say that Thomas 'realized' all the profits earned by the partnership of which he was a member. It was not error to refuse to hold Thomas liable for profits he did not make.
16
Third. It is contended that both courts below erred in failing to allow interest on the recovery of Thomas' share of the partnership profits. Section 16(b) says nothing about interest one way or the other. This Court has said in a kindred situation that 'interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable.' Board of Commissioners of Jackson County, Kansas v. United States, 308 U.S. 343, 352, 60 S.Ct. 285, 289, 84 L.Ed. 313. Both courts below denied interest here and we cannot say that the denial was either so unfair or so inequitable as to require us to upset it.
17
Affirmed.
18
Mr. Justice STEWART took no part in the disposition of this case.
19
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.
20
What the Court does today is substantially to eliminate 'the great Wall Street trading firms' from the operation of § 16(b), as Judge Clark stated in his dissent in the Court of Appeals. 286 F.2d 786, 799. This result follows because of the wide dispersion of partners of investment banking firms among our major corporations. Lehman Bros. has partners on 100 boards. Under today's ruling that firm can make a rich harvest on the 'inside information' which § 16 of the Act covers because each partner need account only for his distributive share of the firm's profits on 'inside information', the other partners keeping the balance. This is a mutilation of the Act.
21
If a partnership can be a 'director' within the meaning of § 16(a), then 'any profit realized by him,' as those words are used in § 16(b), includes all the profits, not merely a portion of them, which the partnership realized on the 'inside information.' There is no basis in reason for saying a partnership cannot be a 'director' for purposes of the Act. In Rattner v. Lehman, 2 Cir., 193 F.2d 564, 567,1 Judge Learned Hand said he was 'not prepared to say' that a partnership could not be considered a 'director', adding 'for some purposes the common law does treat a firm as a jural person.' In his view a partnership might be a 'director' within the meaning of § 16 if it 'deputed a partner' to represent its interests. Yet formal designation is no more significant than informal approval. Everyone knows that the investment banking-corporation alliances are consciously constructed so as to increase the profits of the bankers. In partnership law a debate has long raged over whether a partnership is an entity or an aggregate. Pursuit of that will-o'-the-wisp is not profitable. For even New York with its aggregate theory recognizes that a partnership is or may be considered an entity for some purposes.2 It is easier to make this partnership a 'director' for purposes of § 16 than to hold the opposite. Section 16(a) speaks of every 'person' who is a 'director.' In § 3(a)(9) 'person' is defined to include, inter alia, 'a partnership.'3 Thus, the purpose to subject a partnership to the provisions of § 16 need not turn on a strained reading of that section.
22
At the root of the present problem are the scope and degree of liability arising out of fiduciary relations. In modern times that liability has been strictly construed. The New York Court of Appeals, speaking through Chief Judge Cardozo in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 62 A.L.R. 1, held a joint adventurer to a higher standard than we insist upon today:
23
'Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the 'disintegrating erosion' of particular exceptions (Wendt v. Fischer, 243 N.Y. 439, 444, 154 N.E. 303). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.' 249 N.Y., at 464, 164 N.E., at 546.
24
In Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927, we allowed a reorganization trustee to be surcharged $43,447.46 for profits made by his employees through trading in securities of subsidiaries of a bankrupt company. We made this ruling even though there was 'no hint or proof that he has been corrupt or that he has any interest, present or future, in the profits he has permitted these employees to make.' Id., 341 U.S. at 275, 71 S.Ct. at 684. We said:
25
'These strict prohibitions would serve little purpose if the trustee were free to authorize others to do what he is forbidden. While there is no charge of it here, it is obvious that this would open up opportunities for devious dealings in the name of others that the trustee could not conduct in his own. The motives of man are too complex for equity to separate in the case of its trustees the motive of acquiring efficient help from motives of favoring help, for any reason at all or from anticipation of counterfavors later to come. We think that which the trustee had no right to do he had no right to authorize, and that the transactions were as forbidden for benefit of others as they would have been on behalf of the trustee himself.
26
'* * * equity has sought to limit difficult and delicate fact-finding tasks concerning its own trustee by precluding such transactions for the reason that their effect is often difficult to trace, and the prohibition is not merely against injuring the estate—it is against profiting out of the position of trust. That this has occurred, so far as the employees are concerned, is undenied.' Id., 341 U.S. at 271 273, 71 S.Ct. at 682.
27
It is said that the failure of Congress to take action to remedy the consequences of the Rattner case somehow or other shows a purpose on the part of Congress to infuse § 16 with the meaning that Rattner gave it. We took that course in Toolson v. New York Yankees, 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64, and adhered to a ruling the Court made in 1922 that baseball was not within the scope of the antitrust laws, because the business had been 'left for thirty years to develop, on the understanding that it was not subject to' those laws. Id., 346 U.S. p. 357, 74 S.Ct. p. 78. Even then we had qualms and two Justices dissented. For what we said in Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084, represents our usual attitude: 'It is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.'4 It is ironic to apply the Toolson principle here and thus sanction, as vested, a practice so notoriously unethical as profiting on inside information.
28
We forget much history when we give § 16 a strict and narrow construction. Brandeis in Other People's Money spoke of the office of 'director' as 'a happy hunting ground' for investment bankers. He said that 'The goose that lays golden eggs has been considered a most valuable possession. But even more profitable is the privilege of taking the golden eggs laid by somebody else's goose. The investment bankers and their associates now enjoy that privilege.' Id., at 12.
29
The hearings that led to the Securities Exchange Act of 1934 are replete with episodes showing how insiders exploited for their personal gain 'inside information' which came to them as fiduciaries and was therefore an aset of the and was therefore an asset of the Senate Report labeled those practices as 'predatory operations.' S.Rep.No. 1455, 73d Cong., 2d Sess., p. 68. It said:
30
'Among the most vicious practices unearthed at the hearings before the subcommittee was the flagrant betrayal of their fiduciary duties by directors and officers of corporations who used their positions of trust and the confidential information which came to them in such positions, to aid them in their market activities. Closely allied to this type of abuse was the unscrupulous employment of inside information by large stockholders who, while not directors and officers, exercised sufficient control over the destinies of their companies to enable them to acquire and profit by information not available to others.' Id., at 55. See also S.Rep.No. 792, 73d Cong., 2d Sess., p. 9.
31
The theory embodied in § 16 was the one Brandeis espoused. It was stated by Sam Rayburn as follows: 'Men charged with the administration of other people's money must not use inside information for their own advantage.' H.R.Rep. No. 1383, 73d Cong., 2d Sess. 13.
32
What we do today allows all but one partner to share in the feast which the one places on the partnership table. They in turn can offer feasts to him in the 99 other companies of which they are directors.5 14 Stan.L.Rev. 192, 198. This result is a dilution of the fiduciary principle that Congress wrote into § 16 of the Act. It is, with all respect, a dilution that is possible only by a strained reading of the law. Until now, the courts have given this fiduciary principle a cordial reception. We should not leave to Congress the task of restoring the edifice that it erected and that we tear down.
33
Appendix to Opinion of Mr. Justice DOUGLAS.
34
Lehman v. Civil Aeronautics Board, supra, 93 U.S.App.D.C., at 85—87, 209 F.2d, at 292—294.
35
'Petitioner Lehman is a director of Pan American; petitioner Joseph A. Thomas is a director of National Airlines, Inc., and of American Export Lines, Inc.; petitioner Frederick L. Ehrman is a director of Continental Air Lines, Inc., and Mr. John D. Hertz is a director of Consolidated Vultee Aircraft Corporation. All the companies referred to are in the aeronautic field and so must have Board approval of the kind of interlocking relationships which are made unlawful unless approved. Messrs. Lehman, Thomas, Ehrman, Hertz, and others, are also members of Lehman Brothers, a partnership which, as previously pointed out, conducts an investment banking business.
36
'The Board held that an individual Lehman Brothers partner who is a director of a Section 409(a) company is a representative of another partner who is a director of another such company. The relationships thus found to exist were disapproved as to those involving Pan American and National; Pan American and American Export Lines; Pan American and Consolidated Vultee; National and Pan American; National and Consolidated Vultee; and Continental Air Lines and Consolidated Vultee. * * *
37
'More precisely the Board concluded that a Lehman Brothers partner who is director of an air carrier has a representative 'who represents such * * * director as * * * a director' in another Section 409(a) company if another Lehman Brothers partner is a director of the latter, coupled with the circumstances that he seeks on behalf of Lehman Brothers the security underwriting and merger negotiation services used by the company of which he is director. The underwriting of security issues and the conduct of merger negotiations constitute a substantial part of the business of Lehman Brothers, who have been employed for these purposes not infrequently by Section 409(a) companies. The partners feel free to solicit this business for their firm.
38
'* * * But we must consider the facts of the case in the light of the purpose of Congress to keep the developing aviation industry free of unhealthy interlocking relationships, though this purpose must be carried out only as the statute provides. The relevant findings which point up the problem are not in dispute. The underwriting activities of Lehman Brothers is a substantial part of its business; substantial fees are also obtained by Lehman Brothers from merger negotiations. Profits from the fees are shared by the partners. Section 409(a) companies, with Lehman Brothers partners as directors, need and use both types of services, and the partner directors seek such business for the partnership. In doing so they act as representatives of the partnership. It follows that they act as representatives of fellow partners, some of whom are directors of air carriers. Is this representation within the meaning of the statute? Does Mr. Thomas, to use his case as illustrative, who is a Lehman Brothers partner and also a director of National Airlines, represent, as director of National Airlines, Mr. Lehman, another Lehman Brothers partner and director of Pan American? We think that the affirmative answer of the Board should not be disturbed. For the situation comes to more than some community of interest and some sharing of common benefits as partners. The particular common interest and benefits are among directors of the regulated industry with respect to industry matters. The partnership link does not extend merely to a type of business remote from the aeronautical industry in which the partners are directors; it is with respect to business activities of air carriers and other aeronautical companies enumerated in Section 409(a). In these activities there is not only literal representation by one partner of another in partnership business but the particular partnership business is as well the business of aeronautical enterprises of which the partners are directors. When Mr. Thomas, again to illustrate, as director of National seeks to guide that company's underwriting business to Lehman Brothers he acts in the interest of and for the benefit of Mr. Lehman who is not only his underwriting partner but is also a director of an air carrier, Pan American. Mr. Lehman the partner is the same Mr. Lehman the director. The Board is not required to separate him into two personalities, as it were, and to say that Mr. Thomas represents him as a partner but not as a director, if, as is the case here, the representation is in regard to the carrying on of the affairs of Section 409(a) companies. The undoubted representation which grows out of the partnership we think follows into the directorships when the transactions engaged in are not only by the partners but concern companies regulated by the statute, of which the partners are directors. This is representation within not only the language but the meaning of the statute.'
1
'For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.' 48 Stat. 896, 15 U.S.C. § 78p(b), 15 U.S.C.A. § 78p(b).
2
In 1956, after the purchase and sale in question, Lehman Brothers participated in the underwriting of some Tide Water bonds. Thomas handled this for Lehman and during the course of the matter discussed Tide Water affairs with the other members of Lehman.
3
In compliance with § 16(a) and the rules and forms thereunder, see note 14, infra, Thomas filed with the SEC reports of the Lehman transactions in Tide Water stock and his disclaimer of those transactions.
4
In both courts below defendants claimed that Lehman's profits should have been found to be much less than they were. Since the determination below has not been complained of here, it is not necessary to pass on those contentions.
5
In the two courts below it was contended both that Thomas, because of his disclaimer of all participation in these partnership transactions, had realized no profits at all, and also that, even if he did realize some profits the amount was less than that found. See the opinion of Judge Swan dissenting in part below. 286 F.2d, at 793. We express no view on these questions since the Thomas judgment is not challenged here.
6
See § 16(a), 48 Stat. 896, 15 U.S.C. § 78p(a), 15 U.S.C.A. § 78p(a).
7
48 Stat. 883, 15 U.S.C. § 78c(a)(9), 15 U.S.C.A. § 78c(a)(9).
8
48 Stat. 883, 15 U.S.C. § 78c(a)(7), 15 U.S.C.A. § 78c(a)(7).
9
The Commission's brief says: 'Therefore, when a member of a partnership holds a directorship with the knowledge and consent of his firm, it is entirely reasonable to consider the partnership as the 'director' for the purposes of Section 16(b).'
10
An 'insider' for purposes of § 16 is an officer, director or 10% stockholder. See Cook and Feldman, Insider Trading Under the Securities Exchange Act, 66 Harv.L.Rev. 385, 399—404.
11
Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927, and Lehman v. Civil Aeronautics Board, 93 U.S.App.D.C. 81, 209 F.2d 289, cited by the Commission as comparable situations throw little if any light on the issues in this case. Those cases involved different facts and different statutes, statutes which themselves have different language, purpose and history from the statute here.
12
Thus, § 15(b) of both H.R. 7852, and S. 2693, 73d Cong., 2d Sess. provided:
'(b) It shall be unlawful for any director, officer, or owner of securities, owning as of record and/or beneficially more than 5 per centum of any class of stock of any issuer, and security of which is registered on a national securities exchange. * * * (3) To disclose, directly or indirectly, any confidential information regarding or affecting any such registered security not necessary or proper to be disclosed as a part of his corporate duties. Any profit made by any person, to whom such unlawful disclosure shall have been made, in respect of any transaction or transactions in such registered security within a period not exceeding six months after such disclosure shall inure to and be recoverable by the issuer unless such person shall have had no reasonable ground to believe that the disclosure was confidential or was made not in the performance of corporate duties. * * *' (Emphasis added.)
As to the meaning ascribed to this provision, see Hearings before the Committee on Banking and Currency on S.Res. No. 84, 72d Cong., 2d Sess., and S.Res. Nos. 56 and 97, 73d Cong., 1st and 2d Sess. 6555, 6558, 6560—6561; Hearings before Committee on Interstate and Foreign Commerce on H.R. 7852 and H.R. 8720, 73d Cong., 2d Sess. 135—137. These hearings seem to indicate that the provision was omitted from the final act because of anticipated problems of administration. See also Smolowe v. Delendo Corp., 2 Cir., 136 F.2d 231, 236; Rattner v. Lehman, 2 Cir., 193 F.2d 564.
13
See Seventeenth Annual Report of the Securities and Exchange Commission, p. 62 (1952); Eighteenth Annual Report, p. 79 (1953). These reports were submitted to Congress.
14
Securities and Exchange Commission Release No. 4754 (September 24, 1952), Rule X—16A—3 was again amended effective March 9, 1961, to delete any requirements that a partner report the amount of the issuer's securities held by the partnership but the substance of the rule is still contained in the Commission's instructions to its Forms 3 and 4 which are used for making the reports required under § 16(a).
1
The Rattner decision was rendered at a time when the Securities and Exchange Commission, pursuant to its regulatory power, provided a reporting requirement for § 16(a) which allowed a partner-director to disclose only that amount of the equity securities of the corporation in question held by his partnership and representing his proportionate interest in the partnership. Rule X—16A—3. After the Rattner decision that Rule was amended to read:
'A partner who is required under § 240.16a—1 to report in respect of any equity security owned by the partnership shall include in his report the entire amount of such equity security owned by the partnership. He may, if he so elects, disclose the extent of his interest in the partnership and the partnership transactions.' 17 CFR, 1961 Cum.Supp., § 240.16a—3(b). See Loss, Securities Regulation, Vol. 2, pp. 1102—1104 (1961).
2
Matter of Schwartzman, 262 App.Div. 635, 636—637, 30 N.Y.S.2d 882, 884, aff'd 288 N.Y. 568, 42 N.E.2d 22, holding a partnership to be a legal entity for purposes of the Unemployment Insurance Law; Mendelsohn v. Equitable Life Assurance Soc., 178 Misc. 152, 154, 33 N.Y.S.2d 733, 735, holding 'attorneys as partners are but one person' for purposes of the Rules of Civil Practice; Travelers Indemnity Co. v. Unger, 4 Misc.2d 955, 959, 158 N.Y.S.2d 892, 896, holding a partnership 'is to be regarded as a legal entity for the purposes of pleading.' And see Bernard v. Ratner, City Ct., 7 N.Y.S.2d 717.
3
In United States v. A & P Trucking Co., 358 U.S. 121, 79 S.Ct. 203, 3 L.Ed.2d 165—a case far more severe in its impact than the result I urge here, as it held a partnership could be criminally liable under the Motor Carrier Act—the Court said, 'Congress has specifically included partnerships within the definition of 'person' in a large number of regulatory Acts, thus showing its intent to treat partnerships as entities.' Id., 358 U.S. p. 124, note 3, 79 S.Ct. p. 206.
4
We said in Toucey v. New York Life Ins. Co., 314 U.S. 118, 140—141, 62 S.Ct. 139, 147, 86 L.Ed. 100:
'It is indulging in the merest fiction to suggest that the doctrine which for the first time we are asked to pronounce with our eyes open and in the light of full consideration, was so obviously and firmly part of the texture of our law that Congress in effect enacted it through its silence. There is no occasion here to regard the silence of Congress as more commanding then its own plainly and unmistakably spoken words. This is not a situation where Congress has failed to act after having been requested to act or where the circumstances are such that Congress would ordinarily be expected to act. The provisions of § 265 have never been the subject of comprehensive legislative ree xamination. Even the exceptions referable to legislation have been incidental features of other statutory schemes, such as the Removal and Interpleader Acts. The explicit and comprehensive policy of the Act of 1793 has been left intact. To find significance in Congressional nonaction under these circumstances is to find significance where there is none.'
5
The proper approach to the problem of interlocking directorates through the agency of an investment banking house was expressed by Judge Fahy in Lehman v. Civil Aeronautics Board, 93 U.S.App.D.C. 81, 209 F.2d 289, a case involving this same firm. See Appendix to this opinion.
| 78
|
368 U.S. 436
82 S.Ct. 464
7 L.Ed.2d 426
Howard L. NOSTRAND and Max Savelle, Appellants,v.Herbert S. LITTLE et al., Respondents.
No. 571.
Decided Jan. 22, 1962.
Francis Hoague, for appellants.
John J. O'Connell, Atty. Gen. of Washington, Herbert H. Fuller, Deputy Atty. Gen., and Timothy R. Malone, Asst. Atty. Gen., for appellees.
PER CURIAM.
1
The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.
2
Appeal dismissed.
3
Mr. Justice DOUGLAS, dissenting.
4
The disposition that the Court makes of the case resolves one of the questions presented by the appeal, viz., that appellants are entitled to a hearing before they can be discharged for refusing to take the oath. This was the holding below on the remand.1 58 Wash.2d 111, 132, 361 P.2d 551, 564.
5
Yet a remand for that purpose does not answer the other questions tendered, which concern the oath in question and First and Fourteenth Amendment rights.
6
The oath Washington demands of a teacher (Wash.Rev.Code, 1951, § 9.81.070) requires him to swear he is not a 'subversive person,' who is defined as
7
'* * * any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of Washington, or any political subdivision of either of them by revolution, force, or violence; or who with knowledge that the organization is an organization as described in subsections (2) and (3) hereof, becomes or remains a member of a subversive organization or a foreign subversive organization.' (Italics added.) Wash.Rev.Code, 1951, § 9.81.010(5), as amended in 1953.
8
One aspect of the question the Court does not answer is akin to the one we had in Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285. There we held that an oath which required a teacher to say he had never knowingly lent his 'aid' or 'support' or 'advice' or 'counsel' or 'influence' to the Communist Party was unconstitutional, because it brought or might bring into its net people who, by parallelism of conduct, might be said to have given 'aid' to the Communist Party though the cause they espoused was wholly lawful.
9
This oath presents the question whether one who plans to 'alter' the Government of the United States by 'revolution' or who knowingly belongs to a group that sponsors that idea can be disqualified as a teacher. To 'alter' has been the objective of many who have proposed constitutional amendments. The idea of 'revolution' is an American concept2 that at least until recently has been greatly revered. A 'revolution' that operates through the route of constitutional amendments would, at least arguably, be in keeping with our ideas of freedom of belief and expression. I mention this matter not to decide it but to indicate its gravity and importance.
10
The judgment below dismissed the complaint. That action, together with what we do today, deprives appellants of their right to declaratory relief on questions we have never decided. They are remitted to the administrative relief afforded by a hearing—a relief they can get only if they refuse to take the oath. Whether they can preserve in an administrative proceeding the full array of constitutional questions which they now tender is at least debatable, since the judgment that dismisses their complaint decides all the constitutional questions, except the right to a hearing, against them.
11
For these reasons I dissent from the disposal made of the case and vote to note jurisdiction.
12
For the reasons stated by Mr. Justice DOUGLAS in his dissent, and others, Mr. Justice BLACK also dissents from the dismissal of this case.
1
The purpose of our remand when the case was here earlier was to have that question of local law resolved. Nostrand v. Little, 362 U.S. 474, 80 S.Ct. 840, 4 L.Ed.2d 892.
2
See Scales v. United States, 367 U.S. 203, 262, 275, 81 S.Ct. 1469, 6 L.Ed.2d 782 (dissenting opinion and Appendix).
| 23
|
368 U.S. 424
82 S.Ct. 468
7 L.Ed.2d 417
James Francis HILL, Petitioner,v.UNITED STATES.
No. 68.
Argued Dec. 5, 1961.
Decided Jan. 22, 1962.
Rehearing Denied Feb. 26, 1962.
See 369 U.S. 808, 82 S.Ct. 640.
Curtis R. Reitz, Philadelphia, Pa., for petitioner.
Julia P. Cooper for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In 1954 a jury in a Federal District Court found the petitioner guilty of transporting a kidnapped person in interstate commerce in violation of 18 U.S.C. § 1201, 18 U.S.C.A. § 1201, and of transporting a stolen automobile in interstate commerce in violation of 18 U.S.C. § 2312, 18 U.S.C.A. § 2312. The petitioner was represented by court-appointed counsel at his trial. When, with counsel, he appeared before the District Judge for sentencing, the petitioner was not asked whether he wished to make a statement in his own behalf. The District Judge, after noting his familiarity with the petitioner's character and history, imposed consecutive prison sentences of twenty years and three years for the two offenses of which the jury had found the petitioner guilty. There was no appeal.1
2
The present litigation began in 1959 with the filing of a motion to vacate sentence under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255. Among various grounds for relief asserted, the motion alleged that the petitioner at the time of sentencing had been 'denied the right under Rule 32(a) of Federal Rules of Criminal Procedure, Title 18 U.S.C. (18 U.S.C.A.) to have the opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.' The District Court denied the motion without explicitly discussing the Rule 32(a) claim. 186 F.Supp. 441. The Court of Appeals affirmed, per curiam, 282 F.2d 352. We granted certiorari 'limited to the question of whether petitioner may raise his claim under Federal Criminal Rule 32(a), 18 U.S.C.A. in the proceeding which he has now brought.' 365 U.S. 841, 81 S.Ct. 806, 5 L.Ed.2d 808.
3
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' The meaning of this Rule was before the Court last Term in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670. Although there was no Court opinion in the Green case, eight members of the Court concurred in the view that Rule 32(a) requires a district judge before imposing sentence to afford every convicted defendant an opportunity personally to speak in his own behalf. There thus remains no doubt as to what the Rule commands. Moreover, the present record makes clear that this petitioner was not given an express opportunity to make a personal statement at the time he was sentenced. This case, therefore, is totally unembarrassed by any such factual controversy as divided the Court in Green. The only issue presented is whether a district court's failure explicitly to afford a defendant an opportunity to make a statement at the time of sentencing furnishes, without more, grounds for a successful collateral attack upon the judgment and sentence.2 We hold that the failure to follow the formal requirements of Rule 32(a) is not of itself an error that can be raised by collateral attack, and we accordingly affirm the judgment of the Court of Appeals.
4
Section 2255 of Title 28 U.S.C., 28 U.S.C.A. § 2255, provides that a prisoner in custody under sentence of a federal court may file a motion in the 'court which imposed the sentence to vacate, set aside or correct the sentence.' The statute states four grounds upon which such relief may be claimed: (1) 'that the sentence was imposed in violation of the Constitution or laws of the United States,' (2) 'that the court was without jurisdiction to impose such sentence,' (3) 'that the sentence was in excess of the maximum authorized by law,' and (4) that the sentence 'is otherwise subject to collateral attack.'3
5
The circumstances which led Congress in 1948 to enact this legislation were reviewed in detail by Chief Justice Vinson, writing for the Court in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. It is unnecessary to review again here this legislative history, with which Chief Justice Vinson, as Chairman of the Judicial Conference of the United States, was particularly familiar. Suffice it to say that it conclusively appears from the historic context in which § 2255 was enacted that the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined.4 See Heflin v. United States, 358 U.S. 415, 421, 79 S.Ct. 451, 3 L.Ed.2d 407 (concurring opinion).
6
'(A) review of the history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.' United States v. Hayman, 342 U.S., at 219, 72 S.Ct., at 272. (Emphasis added.)5
7
The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455. See Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Johnston v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302.
8
In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, the Court held that the remedy of habeas corpus was unavailable in circumstances far more compelling than are presented here. There the petitioners at their criminal trial had been denied an opportunity to present a defense which subsequent decisions of this Court had held should clearly have been available to them. What was said in that case is apposite here:
9
'We are dealing here with a problem which has radiations far beyond the present cases. The courts which tried the defendants had jurisdiction over their persons and over the offense. They committed an error of law * * *. That error did not go to the jurisdiction of the trial court. Congress, moreover, has provided a regular, orderly method for correction of all such errors by granting an appeal to the Circuit Court of Appeals and by vesting us with certiorari jurisdiction. It is not uncommon after a trial is ended and the time for appeal has passed to discover that a shift in the law or the impact of a new decision has given increased relevance to a point made at the trial but not pursued on appeal. * * * If in such circumstances, habeas corpus could be used to correct the error, the writ would become a delayed motion for a new trial, renewed from time to time as the legal climate changed. Error which was not deemed sufficiently adequate to warrant an appeal would acquire new implications. * * * Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.' 332 U.S., at 181—182, 67 S.Ct. at 1592.
10
It is to be noted that we are not dealing here with a case where the defendant was affirmatively denied an opportunity to speak during the hearing at which his sentence was imposed. Nor is it suggested that in imposing the sentence the District Judge was either misinformed or uninformed as to any relevant circumstances. Indeed, there is no claim that the defendant would have had anything at all to say if he had been formally invited to speak. Whether § 2255 relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances is a question we therefore do not consider. We decide only that such collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the Rule.6
11
It is suggested that although the petitioner denominated his motion as one brought under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, we may consider it as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure.7 This is correct. Heflin v. United States, 358 U.S. 415, 418, 422, 79 S.Ct. 451, 453, 455, 3 L.Ed.2d 407. But, as the Rule's language and history make clear, the narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence.8 The sentence in this case was not illegal. The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.9
12
Affirmed.
13
Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
14
The petitioner James Hill brought this proceeding to vacate two sentences under which he is imprisoned in a federal penitentiary, alleging that the sentences are illegal because the trial judge who imposed them had not given him the opportunity required by Rule 32(a) of the Federal Rules of Criminal Procedure 'to make a statement in his own behalf and to present any information in mitigation of punishment.' Conceding that the sentences thus challenged were imposed without according petitioner his right to speak, the Court nonetheless denies relief under Rule 35's provision for the correction of 'illegal' sentences on the ground that the sentences though imposed in flat violation of Rule 32(a), were not 'illegal' within the special meaning which the majority now ascribes to that word for the purposes of Rule 35.1 The basic explanation offered for this drastic contraction of the ordinary meaning of the word 'illegal' is this single statement in the Court's opinion:
15
'The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.'
16
That statement to me amounts to something less than an entirely satisfactory justification for such a begrudging interpretation of Rule 35.
17
The Court's holding certainly finds no support in the language of Rule 35. That Rule, although painstakingly drawn by lawyers and approved both by Judges and by the Congress, simply provides for the correction of an 'illegal sentence' without regard to the reasons why that sentence is illegal and contains not a single word to support the Court's conclusion that only a sentence illegal by reason of the punishment it imposes is 'illegal' within the meaning of the Rule. I would have thought that a sentence imposed in an illegal manner—whether the amount or form of the punishment method out constitutes an additional violation of law or not—would be recognized as an 'illegal sentence' under any normal reading of the English language.2 And precisely this sort of common-sense understanding of the language of Rule 35 has prevailed generally among the lower federal courts that deal with questions of the proper interpretation and application of these Rules as an everyday matter. Those courts have expressed their belief that, even where the punishment imposed upon a defendant is entirely within the limits prescribed for the crime of which he was convicted, a sentence imposed in a prohibited manner—as, for example, a sentence imposed upon an absent defendant in violation of the command of Rule 43 that a defendant be present at sentencing3—is an 'illegal sentence' subject to correction under Rule 35.4
18
The Court's contrary decision today, however, was perhaps foreshadowed last Term by the narrow scope given to Rule 32(a) when the issue of the meaning of that Rule came before us for the first time in Green v. United States.5 That case, like this one, involved an attempt to vacate a sentence as 'illegal' under Rule 35 on the ground that the trial judge had failed to accord the defendant his right to make a statement before sentencing. The record there showed merely that the trial judge, in the presence of both the defendant and his counsel, had asked generally, 'Did you want to say something?' and that, in response to this question, the attorney rather than the defendant had spoken. Recognizing that the right accorded by Rule 32(a) is a personal right which must be extended to the defendant himself, the Court nonetheless denied relief, largely upon the view expressed by four members of the Court that: '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.'6 This conclusion was reached in spite of the fact that the Government's brief before this Court expressly conceded that Green had not been personally afforded an opportunity to speak.
19
But even in Green, not one member of the Court went so far as even to intimate—unless such an intimation was implicit in the concurring opinion of Mr. Justice STEWART7—that a sentence undeniably imposed in disregard of the legal right of a defendant to speak for himself would not be an 'illegal sentence.' Four members of the Court—THE CHIEF JUSTICE, Mr. Justice DOUGLAS, Mr. Justice BRENNAN and I—expressly stated the view that such a sentence could be corrected under Rule 35's provision for the correction of 'illegal' sentences. And four other members of the Court, in an opinion written by Mr. Justice FRANKFURTER, emphasized the importance of the right of the defendant to speak for himself, saying: 'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.'8 Although it is true that these latter four members of the Court joined in refusing to set aside the sentence in that case, their stated ground was: '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.'9 In the light of all these statements, it is not surprising that the Courts of Appeals for both the First and the Fifth Circuits have regarded the combined opinions in Green as requiring the correction of sentences as illegal when the defendant is able 'to meet his burden of showing that he was not accorded the personal right which Rule 32(a) guarantees.'10
20
I think that a due observance of the requirements of Rule 32(a), resting as they do upon the anciently recognized right of a defendant to speak to the court before sentence is imposed, is important to the proper administration of justice in the federal courts. And it seems to me that the Court is mistaken in thinking that the importance of that right is not reflected in this very case, for I cannot agree with the Court's conclusion that 'there is no claim that the defendant would have had anything at all to say if he had been formally invited to speak.' According to the petitioner's brief, the denial of his right to speak was particularly injurious to him here because he had several previous convictions which presumably were known to the sentencing judge.11 In this connection, he says: 'Petitioner has been and is presently seeking collateral relief from those judgments and, indeed, has already had one set aside. This mitigating evidence, if known to the sentencing court, might have a profound impact upon the sentence imposed.'
21
More importantly, however, whether the right to speak before sentence would have been of value to petitioner in this particular case or not, the right is one recognized by a rule which has the force of law and a sentence imposed in violation of law is plainly 'illegal.' If the Court is unhappy with the wording of Rule 35—a wording adopted by the Court itself and submitted to Congress for approval as required by law—whatever change is necessary to bring the Rule into conformity with the Court's present preferences should be incorporated into the explicit language of the Rule and submitted to Congress for its approval. I would reverse this case and remand it to allow the District Court to resentence petitioner after granting him his right to speak under Rule 32(a).
1
In an earlier motion filed under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 the petitioner claimed that he had been prevented by government agents from appealing the judgment of conviction. The District Court denied the motion. The Court of Appeals set aside the District Court's order and directed that a hearing be had on the motion. 6 Cir., 256 F.2d 957. After a hearing before a different district judge, the motion was again denied. The Court of Appeals affirmed. 6 Cir., 268 F.2d 203.
2
The majority of the Court in the Green case did not decide whether the issue of a Rule 32(a) violation could be raised on collateral attack, or whether such a violation 'would constitute an error per se rendering the sentence illegal.' 365 U.S., at 303, 81 S.Ct., at 655.
3
'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.' 28 U.S.C. § 2255, 28 U.S.C.A. § 2255.
4
See Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171.
5
The Courts of Appeals, at least since the Hayman decision, appear to have consistently understood the substantive scope of § 2255 to be the same as that of habeas corpus. See, e.g., Larson v. United States, 275 F.2d 673 (C.A.5th Cir.); Black v. United States, 269 F.2d 38 (C.A.9th Cir.); Taylor v. United States, 229 F.2d 826, 832 (C.A.8th Cir.); Kreuter v. United States, 201 F.2d 33, 35 (C.A.10th Cir.).
6
See Van Hook v. United States, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821 for the relief afforded on direct appeal in a case where the sentencing judge disregarded the mandate of Rule 32(a).
7
Rule 35 provides in pertinent part: 'The court may correct an illegal sentence at any time.'
8
As has been pointed out, Rule 35 'was a codification of existing law and was intended to remove any doubt created by the decision in United States v. Mayer, 235 U.S. 55, 67, 35 S.Ct. 16, 18, 59 L.Ed. 129, as to the jurisdiction of a District Court to correct an illegal sentence after the expiration of the term at which it was entered.' Heflin v. United States, 358 U.S. at 422, 79 S.Ct. at 455 (concurring opinion).
9
Compare Heflin v. United States, supra. In that case Rule 35 was invoked in a situation where we unanimously recognized that the only issue was whether 'the sentence imposed was illegal on its face.' 358 U.S., at 418 (Court opinion), 422 (concurring opinion), 79 S.Ct. at 453, 455. Heflin involved the imposition of separate consecutive sentences for a single offense.
1
Petitioner's attack upon his sentences was originally brought as a motion under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255. Since I agree with the Court that a motion under § 2255 must, where appropriate, also be considered as a motion under Rule 35, and because I think petitioner is plainly entitled to relief under that Rule, I find it unnecessary to consider the question discussed by the Court as to whether petitioner is also entitled to relief under § 2255.
2
This does not of course mean that Rule 35 permits attack upon a sentence based upon mere trial errors. Rule 35 applies to any 'illegal sentence,' not to any illegal conviction, and thus by its terms the Rule protects only those rights which a defendant retains even if the judgment of guilt against him is proper. See Cook v. United States, 1 Cir., 171 F.2d 567, 570—571.
3
Rule 43 provides: 'The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. * * *'
4
See Cook v. United States, 171 F.2d 567; Crowe v. United States, 6 Cir., 200 F.2d 526. Cf. Williamson v. United States, 5 Cir., 265 F.2d 236, 239. Similarly, it has also been held that Rule 35's corrective force extends to a sentence illegal by reason of the fact that the defendant upon whom it was imposed was insane at the time of sentencing. Byrd v. Prescor, 8 Cir., 163 F.2d 775. See also Duggins v. United States, 6 Cir., 240 F.2d 479, 483—484.
5
365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670.
6
Id., 365 U.S. at 304—305, 81 S.Ct. at 655.
7
But cf. Mr. Justice Stewart's concurring opinion in Heflin v. United States, 358 U.S. 415, 420, 79 S.Ct. 451, in which the four other members of the present majority concurred.
8
365 U.S., at 304, 81 S.Ct. at 655.
9
Id., at 305, 81 S.Ct., at 655.
10
Domenica v. United States, 292 F.2d 483; Jenkins v. United States, 293 F.2d 96.
11
Rule 32(c) provides for a presentence investigation and report to the trial judge for use in imposing sentence which 'shall contain any prior criminal record of the defendant * * *.' Since this is not the sort of information which normally finds its way into the record at the trial itself, a defendant's only chance to explain or rebut such evidence will often be by exercise of his right under 32(a).
| 01
|
368 U.S. 502
82 S.Ct. 519
7 L.Ed.2d 483
CHARLES DOWD BOX CO., Inc., Petitioner,v.John F. COURTNEY et al., etc.
No. 33.
Argued Nov. 7, 1961.
Decided Feb. 19, 1962.
George H. Mason, Worcester, Mass., for petitioner.
David E. Feller, Washington, D.C., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 301(a) of the Labor Management Relations Act of 1947 provides:
2
'(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.'1
3
The sole question presented by this case is whether this federal statute operates to divest a state court of jurisdiction over a suit for violation of a contract between an employer and a labor organization.
4
The petitioner is an employer engaged in an industry affecting commerce as defined in the Labor Management Relations Act of 1947. The United Steelworkers of America, an international union, was the collective bargaining representative of the petitioner's production and maintenance employees, organized in Local 5158. A few weeks before the expiration of a collective bargaining agreement in 1957, negotiations were initiated between representatives of the union and of the petitioner with respect to proposals which the union had submitted for a new agreement. After a number of negotiating sessions, a 'Stipulation' was signed by representatives of each party, continuing in effect many provisions of the old agreement, but providing for wage increases and making other changes with respect to holidays and vacations. The terms of the 'Stipulation' were later embodied in a draft of a proposed new agreement. The petitioner originally announced to its employees that it would put into effect the wage changes and other provisions covered by the 'Stipulation' and draft agreement, but a few weeks later notified its employees of its intention to terminate these changes and return 'to the rates in effect as of May 18, 1957.' It was the petitioner's position that its bargaining representatives had acted without authority in negotiating the new agreement, and that the union had been so advised before any contract had actually been concluded.
5
The present action was then brought in the Superior Court of Massachusetts for Worcester County by the respondents, local union officers and a staff representative of the International Union. The complaint alleged that the plaintiffs 'fairly and adequately represent the interests of the entire membership' of the union and Local 5158, and asked for a judgment declaring that there existed a valid and binding collective bargaining agreement, for an order enjoining the company from terminating or violating it, and for an accounting and damages. Responding to the complaint, the petitioner interposed several defenses, among them the contention that, by reason of § 301(a) of the Labor Management Relations Act, the state court had no jurisdiction over the controversy. The trial court rejected this attack upon its jurisdiction, determined on the merits that the collective bargaining agreement was 'valid and binding on the parties thereto,' and entered a money judgment in conformity with the wage provisions of the agreement.
6
The Supreme Judicial Court of Massachusetts affirmed, 341 Mass. 337, 169 N.E.2d 885, expressly ruling that § 301(a) has not made the federal courts the exclusive arbiters of suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce. As Chief Justice Wilkins put it, 'We do not accept the contention that State courts are without jurisdiction. The statute does not so declare. The conferring of jurisdiction in actions at law upon the appropriate District Courts of the United States is not, in and of itself, a deprivation of an existing jurisdiction both at law and in equity in State courts. The case principally relied upon by the defendant, Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972, does not so state. In the absence of a clear holding by the Supreme Court of the United States that Federal jurisdiction has been made exclusive, we shall not make what would be tantamount to an abdication of the hitherto undoubted jurisdiction of our own courts.'2 Certiorari was granted to consider the important question of federal law thus presented. 365 U.S. 809, 81 S.Ct. 699, 5 L.Ed.2d 690. We agree with the Supreme Judicial Court of Massachusetts that the courts of that Commonwealth had jurisdiction in this case, and we accordingly affirm the judgment before us.
7
It has not been argued, nor could it be, that § 301(a) speaks in terms of exclusivity of federal court jurisdiction over controversies within the statute's purview. On its face § 301(a) simply gives the federal district courts jurisdiction over suits for violation of certain specified types of contracts. The statute does not state nor even suggest that such jurisdiction shall be exclusive. It provides that suits of the kind described 'may' be brought in the federal district courts, not that they must be.
8
The petitioner points out, however, that this Court held in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972, that § 301(a) is more than jurisdictional—that it authorizes federal courts to fashion, from the policy of our national labor laws, a body of federal law for the enforcement of agreements within its ambit. The Court recognized in that case that 'state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy,' but emphasized that '(a)ny state law applied * * * will be absorbed as federal law * * *.' 353 U.S., at 457, 77 S.Ct. at 918.
9
It is argued that the rationale of Lincoln Mills would be frustrated if state courts were allowed to exercise concurrent jurisdiction over suits within the purview of § 301(a). The task of formulating federal common law in this area of labor management relations must be entrusted exclusively to the federal courts, it is said, because participation by the state courts would lead to a disharmony incompatible with the Lincoln Mills concept of an all-embracing body of federal law. Only the federal judiciary, the argument goes, possesses both the familiarity with federal labor legislation and the monolithic judicial system necessary for the proper achievement of the creative task envisioned by Lincoln Mills. An analogy is drawn to our decisions which have recognized the necessity of withdrawing from the state courts jurisdiction over controversies arguably subject to the jurisdiction of the National Labor Relations Board.3
10
Whatever the merits of this argument as a matter of policy, we find nothing to indicate that Congress adopted such a policy in enacting § 301. The legislative history of the enactment nowhere suggests that, contrary to the clear import of the statutory language, Congress intended in enacting § 301(a) to deprive a party to a collective bargaining contract of the right to seek redress for its violation in an appropriate state tribunal.
11
We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule.4 This Court's approach to the question of whether Congress has ousted state courts of jurisdiction was enunciated by Mr. Justice Bradley in Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833, and has remained unmodified through the years. 'The general question, whether State courts can exercise concurrent jurisdiction with the Federal courts in cases arising under the Constitution, laws, and treaties of the United States, has been elaborately discussed, both on the bench and in published treatises * * * (and) the result of these discussions has, in our judgment, been * * * to affirm the jurisdiction, where it is not excluded by express provision, or by incompatibility in its exercise arising from the nature of the particular case.' 93 U.S., at 136. See Robb v. Connolly, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542; Second Employers' Liability Cases, 223 U.S. 1, 56—59, 32 S.Ct. 169, 177—178, 56 L.Ed. 327; State of Missouri ex rel. St. Louis, B. & M.R. Co. v. Taylor, 266 U.S. 200, 45 S.Ct. 47, 69 L.Ed. 247; Garrett v. Moore-McCormack Co., 317 U.S. 239, 245, 63 S.Ct. 246, 250, 87 L.Ed. 239; Brown v. Gerdes, 321 U.S. 178, 188, 64 S.Ct. 487, 492, 88 L.Ed. 659 (concurring opinion).5 To hold that § 301(a) operates to deprive the state courts of a substantial segment of their established jurisdiction over contract actions would thus be to disregard this consistent history of hospitable acceptance of concurrent jurisdiction.
12
Such a construction of § 301(a) would also disregard the particularized history behind the enactment of that provision of the federal labor law. The legislative history makes clear that the basic purpose of § 301(a) was not to limit, but to expand, the availability of forums for the enforcement of contracts made by labor organizations. Moreover, there is explicit evidence that Congress expressly intended not to encroach upon the existing jurisdiction of the state courts.
13
The Labor Management Relations Act of 1947 represented a far-reaching and many-faceted legislative effort to promote the achievement of industrial peace through encouragement and refinement of the collective bargaining process. It was recognized from the outset that such an effort would be purposeless unless both parties to a collective bargaining agreement could have reasonable assurance that the contract they had negotiated would be honored. Section 301(a) reflects congressional recognition of the vital importance of assuring the enforceability of such agreements.
14
The direct antecedent of § 301 was § 10 of the Case bill, H.R. 4908, 79th Cong., 2d Sess., which was passed by both Houses of the Congress, but vetoed by the President in 1946. In conferring upon the federal district courts jurisdiction over suits upon contracts made by labor organizations, that section of the Case bill contained provisions substantially the same for present purposes as the provisions of § 301 at issue in this case.6
15
In considering these provisions of the proposed legislation in 1946, Congress manifested its complete awareness of both the existence and the limitations of state court remedies for violation of collective agreements. A principal motive behind the creation of federal jurisdiction in this field was the belief that the courts of many States could provide only imperfect relief because of rules of local law which made suits against labor organizations difficult or impossible, by reason of their status as unincorporated associations. The discussion between the supporters and opponents of this provision of the Case bill centered primarily on the nature and availability of existing state remedies. As a result, both factions collected and presented comprehensive data respecting the laws of the various States as to the status of labor organizations as legal entities. See, e.g., S.Rep.No.1177, 79th Cong., 2d Sess., Minority Report, pp. 10—14; 92 Cong.Rec. 5412-5415.
16
The bill which the Senate originally passed the following year contained a provision making a breach of a collective bargaining agreement an unfair labor practice subject to the jurisdiction of the National Labor Relations Board, S. 1126, 80th Cong., 1st Sess., §§ 8(a)(6), 8(b)(5), as well as a provision conferring jurisdiction upon the federal courts over suits for violation of collective agreements. In conference, however, it was decided to make collective bargaining agreements enforceable only in the courts. 'Once parties have made a collective bargaining contract,' the conference report stated, 'the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board.' H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., p. 42.
17
The report which accompanied the bill passed by the House of Representatives in 1947 explicitly acknowledged that the proposed § 301 was a slightly recast version of § 10 of the Case bill. H.R.Rep.No.245, 80th Cong., 1st Sess., p. 45. The record of the congressional debates on § 301 of the 1947 Act reflects the same concern with the adequacy of the laws of the various States as had been expressed the previous year in the discussion of § 10 of the Case bill. The Minority Report in the House in 1947 again discussed the availability of relief, the alternative means of recovery, and the scope of remedy in suits against labor organizations under the laws of the various States. H.R.Rep.No.245, 80th Cong., 1st Sess., pp. 108—109. The Senate Report reproduced verbatim the detailed analysis of state procedural law which had been contained in the Senate Minority Report on the 1946 legislation. S.Rep.No.105, 80th Cong., 1st Sess., pp. 15—18.
18
The clear implication of the entire record of the congressional debates in both 1946 and 1947 is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations. There seems to have been explicit mention of the question only once—in the Senate debate over § 10 of the 1946 bill. A spokesman for the bill, Senator Ferguson, stated unequivocally that state court jurisdiction would not be ousted by enactment of the federal law:
19
'Mr. FERGUSON. Mr. President, there is nothing whatever in the now-being-considered amendment which takes away from the State courts all the present rights of the State courts to adjudicate the rights between parties in relation to labor agreements. The amendment merely says that the Federal courts shall have jurisdiction. It does not attempt to take away the jurisdiction of the State courts, and the mere fact that the Senator and I disagree does not change the effect of the amendment.
20
'Mr. MURRAY. But it authorizes the employers to bring suit in the Federal courts, if they so desire.
21
'Mr. FERGUSON. That is correct. That is all it does. It takes away no jurisdiction of the State courts.' 92 Cong.Rec. 5708.
22
Although the record of the 1947 debates contains no explicit statement of such precise relevance as Senator Ferguson's remarks in 1946, the entire tenor of the 1947 legislative history confirms that the purpose of § 301, like its counterpart in the Case bill, was to fill the gaps in the jurisdictional law of some of the States, not to abolish existing state court jurisdiction. For example, Senator Ball, one of the Floor Leaders for the bill, stated:
23
'(W)e give to employers the right to sue a union in interstate commerce, in a Federal court, for violation of contract. It does not go beyond that. As a matter of law, I think they have that right, now, but because unions are voluntary associations, the common law in a great many States requires service on every member of the union, which is very difficult; * * *.' 93 Cong.Rec. 5014.7
24
This basic purpose of § 301 is epitomized in the Senate Report: 'It is apparent that until all jurisdictions, and particularly the Federal Government, authorize actions against labor unions as legal entities, there will not be the mutual responsibility necessary to vitalize collective-bargaining agreements.' S.Rep.No.105, 80th Cong., 1st Sess., p. 17. It is obvious that Congress did not intend this remedial measure to destroy the foundation upon which it was built.
25
This Court, in holding that the Labor Management Relations Act of 1947 operates to withdraw from the jurisdiction of the States controversies arguably subject to the jurisdiction of the National Labor Relations Board, has delineated the specific considerations which led to that conclusion:
26
'Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.' Garner v. Teamsters, etc., Union, 346 U.S. 485, 490, 74 S.Ct. 161, 98 L.Ed. 228.
27
By contrast, Congress expressly rejected that policy with respect to violations of collective bargaining agreements by rejecting the proposal that such violations be made unfair labor practices. Instead, Congress deliberately chose to leave the enforcement of collective agreements 'to the usual processes of the law.' It is implicit in the choice Congress made that 'diversities and conflicts' may occur, no less among the courts of the eleven federal circuits, than among the courts of the several States, as there evolves in this field of labor management relations that body of federal common law of which Lincoln Mills spoke. But this not necessarily unhealthy prospect is no more than the usual consequence of the historic acceptance of concurrent state and federal jurisdiction over cases arising under federal law. To resolve and accommodate such diversities and conflicts is one of the traditional functions of this Court.8
28
Affirmed.
29
Mr. Justice BLACK concurs in the result.
1
The remaining provisions of § 301 are as follows:
'(b) Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
'(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.
'(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, it his capacity as such, shall constitute service upon the labor organization.
'(e) For the purposes of this section, in determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.' 29 U.S.C. § 185, 29 U.S.C.A. § 185. 61 Stat. 156—157.
2
341 Mass. 337, 338—339, 169 N.E.2d 885, 887. As pointed out by the Massachusetts court, its view is in accord with other state court decisions. McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal.2d 45, 57—60, 315 P.2d 322, 328—330; Connecticut Co. v. Division 425, of Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees, 147 Conn. 608, 164 A.2d 413; Harbison-Walker Refractories Co. v. United Brick & Clay Workers of America, AFL-CIO Local No. 702, 339 S.W.2d 933 (Ky.Ct.App.); Miller v. Kansas City Power & Light Co., 332 S.W.2d 18 (Mo.App.); Anchor Motor Freight N.Y. Corp. v. Local Union No. 445, of Intern. Broth. of Teamsters, etc., 5 A.D.2d 869, 171 N.Y.S.2d 511; Steinberg v. Mendel Rosenzweig Fine Furs, 9 Misc.2d 611, 167 N.Y.S.2d 685; General Electric Co. v. International Union United Automobile, etc., Workers, 93 Ohio App. 139, 153—156, 108 N.E.2d 211, 220—222; Local Lodge No. 774, Intern. Ass'n of Machinists v. Cessna Aircraft Co., 186 Kan. 569, 352 P. 420; International Longshoremen's and Warehousemen's Union, Local No. 8 v. Harvey Aluminum, Or., 359 P.2d 112; Springer v. Powder Power Tool Corp., 220 Or. 102, 348 P.2d 1112; Philadelphia Marine Trade Ass'n v. International Longshoremen's Ass'n, Local Union No. 1291, 382 Pa. 326, 115 A.2d 419, 733; Lucas Flour Co. v. Local 174, Teamsters, etc., 57 Wash.2d 95, 356 P.2d 1; Clark v. Hein-Werner Corp., 8 Wis.2d 264, 99 N.W.2d 132, 100 N.W.2d 317. But at least two federal courts have expressed the view that their jurisdiction under § 301(a) might be exclusive. Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 3 Cir., 210 F.2d 623, 629—630, note 16, aff'd 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 510; International Plainfield Motor Co. v. Local No. 343, Intern. Union, United Automobile, etc., Workers, 123 F.Supp. 683, 692 (D.N.J.).
3
See, e.g., San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.
4
Indeed, Congress has so arranged the limited jurisdiction of federal courts that some federal laws can be enforced only in the state courts. See, e.g., 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, conferring jurisdiction upon federal courts of civil actions arising under the Constitution, laws, or treaties of the United States only if the matter in controversy exceeds the sum or value of $10,000.
5
See also Houston v. Moore, 5 Wheat. 1, 25—27, 5 L.Ed. 19, and see generally The Federalist No. 82 (Hamilton).
6
'Sec. 10. (a) Suits for violation of a contract concluded as the result of collective bargaining between an employer and a labor organization if such contract affects commerce as defined in this Act may be brought in any district court of the United States having jurisdiction of the parties.
'(b) Any labor organization whose activities affect commerce as defined in this Act shall be bound by the acts of its duly authorized agents acting within the scope of their authority from the said labor organization and may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
'(c) For the purposes of this section district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. The service of summons, subpena, or other legal process upon such officer or agent shall constitute service upon the labor organization.
'(d) Any employee who participates in a strike or other interference with the performance of an existing collective bargaining agreement, in violation of such agreement, if such strike or interference is not ratified or approved by the labor organization party to such agreement and having exclusive bargaining rights for such employee, shall lose his status as an employee of the employer party to such agreement for the purposes of sections 8, 9, and 10 of the National Labor Relations Act: Provided, That such loss of status for such employee shall cease if and when he is reemployed by such employer.'
7
See also the remarks of Senator Smith, 93 Cong.Rec. 4281.
8
In the course of argument at the Bar two questions were discussed which are not involved in this case, and upon which we expressly refrain from intimating any view—whether the Norris-LaGuardia Act might be applicable to a suit brought in a state court for violation of a contract made by a labor organization, and whether there might be impediments to the free removal to a federal court of such a suit. The relation of the Norris-LaGuardia Act to state courts applying federal labor law has never been decided by this Court. See McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal.2d 45, 315 P.2d 322. For that matter, we have not yet ruled on the effect of Norris-LaGuardia upon the jurisdiction of federal courts in this area. Compare Chauffeurs, Teamsters and Helpers Local Union No. 795 v. Yellow Transit Freight Lines, Inc., 10 Cir., 282 F.2d 345, certiorari granted, 364 U.S. 931, 81 S.Ct. 378, 5 L.Ed.2d 364, with Sinclair Ref. Co. v. Atkinson, 7 Cir., 290 F.2d 312, certiorari granted, 368 U.S. 937, 82 S.Ct. 376, 7 L.Ed.2d 336. And quite obviously we have not yet considered the various problems concerning removal under 28 U.S.C. § 1441, 28 U.S.C.A. § 1441. See Swift & Co. v. United Packing-house Workers, D.C., 177 F.Supp. 511; Fay v. American Cystoscope Makers, Inc., D.C., 98 F.Supp. 278.
| 910
|
368 U.S. 443
82 S.Ct. 498
7 L.Ed.2d 442
Morgan C. CHEWNING, Petitioner,v.W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary.
No. 63.
Argued Dec. 4 and 5, 1961.
Decided Feb. 19, 1962.
Daniel J. Meador, Charlottesville, Va., for the petitioner.
Reno S. Harp, III, Richmond, Va., for the respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner was sentenced to 10 years in prison under Virginia's recidivist statute. Va.Code, 1950, § 53—296. This statute provides that when it appears that a person convicted of an offense has been previously sentenced 'to a like punishment,' he may be tried on an information that alleges 'the existence of records of prior convictions and the identity of the prisoner with the person named in each.' The statute goes on to provide that the prisoner may deny the existence of any such records, or that he is the same person named therein, or both.
2
If the existence of the records is denied, the court determines whether they exist. If the court so finds and the prisoner denies he is the person mentioned in the records or remains silent, a jury is impaneled to try that issue. If the jury finds he is the same person and if he has one prior conviction, the court may sentence him for an additional term not to exceed five years. If he has been twice sentenced, the court may impose such additional sentence as it 'may deem proper.'
3
Petitioner, then imprisoned in Virginia, was charged with having been three times convicted of and sentenced for a felony. He was accordingly tried under the recidivist statute; and he is now serving the sentence imposed at that trial. He brought this habeas corpus proceeding in the Virginia courts to challenge the legality of that sentence. The crux of his complaint was that he was tried and convicted without having had the benefit and aid of counsel, though he had requested one.1 The Law and Equity Court of Richmond denied relief; and the Supreme Court of Appeals of Virginia refused a writ of error. While the grounds for the action of the Supreme Court of Appeals are not disclosed, the Law and Equity Court wrote an opinion, making clear that it ruled on the federal constitutional claim:
4
'As to the mandate of the Fourteenth Amendment to the Constitution of the United States, here relied upon, the converse has been adjudicated. In Gryger v. Burke, 334 U.S. 728 (68 S.Ct. 1256, 92 L.Ed. 1683), where release (on) habeas corpus was sought on the ground that petitioner was without counsel at his recidivist hearing, Mr. Justice Jackson said, in part, as follows (at p. 731 (68 S.Ct. 1256)):
5
"* * * the State's failure to provide counsel for this petitioner on his plea to the fourth offender charge did not render his conviction and sentence invalid.'
6
'This holding was adhered to in Chandler v. Fretag, 348 U.S. 3 (75 S.Ct. 1, 99 L.Ed. 4), where it was decided that, while a State is not required under the Fourteenth Amendment to furnish counsel, it cannot deny the defendant in a repeater hearing of the right to be heard by counsel of his own choice.'
7
The Law and Equity Court, while conceding that a proceeding under the recidivist statute was 'criminal' and that in that proceeding the accused was entitled to most of the protections afforded defendants in criminal trials, concluded that petitioner was not entitled to have counsel appointed to assist him, since the proceeding was 'only connected with the measure of punishment for the last-committed crime.' Cf. Fitzgerald v. Smyth, 194 Va. 681, 689—690, 74 S.E.2d 810, 816.
8
We put to one side Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683, on which the Virginia court relied. In that case, identity was the only issue and the specialized circumstances seemed to a majority not to require the appointment of counsel. Under the present recidivist statute, the situation is quite different. As we have seen, the 'existence' of records of prior convictions of the kind described in the statute is an issue tendered in Virginia. We said of a like issue in Reynolds v. Cochran, 365 U.S. 525, 531, 81 S.Ct. 723, 727, 5 L.Ed.2d 754, '* * * 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.' In that case we also pointed out that the issue of 'identity' may at times present difficult local law issues, as for example '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.' Id., p. 532, 81 S.Ct. p. 727.
9
In Reynolds v. Cochran, supra, the accused had his own lawyer and only asked for a continuance. But the holding in the case applies equally to an accused faced with an information under Virginia's recidivist statute and who has no lawyer. It is 'The nature of the charge' (Tomkins v. Missouri, 323 U.S. 485, 488, 65 S.Ct. 370, 89 L.Ed. 407) that underlines the need for counsel. In trials of this kind the labyrinth of the law is, or may be, too intricate for the layman to master. Id., pp. 488—489, 65 S.Ct. 370; Williams v. Kaiser, 323 U.S. 471, 474, 65 S.Ct. 363, 89 L.Ed. 398. Virginia has held that the validity of any of the prior convictions, used to bring the multiple-offender statute into play, may be inquired into. See, e.g., Wesley v. Commonwealth, 190 Va. 268, 272—274, 56 S.E.2d 362, 364. These may involve judgments of conviction in any state or federal court in the Nation. Counsel, whom we appointed to represent petitioner here, has shown the wide variety of problems that may be tendered. In Virginia, a trial under this statute may present questions such as whether the courts rendering the prior judgments had jurisdiction over the offenses and over the defendant and whether these offenses were punishable by a penitentiary sentence. Wesley v. Commonwealth, supra, 190 Va., at 273, 56 S.E.2d, at 364. In Virginia, a sentence in excess of the one the court rendering it had power to impose is 'void for the excess only.' See Royster v. Smith, 195 Va. 228, 235, 77 S.E.2d 855, 858—859. In Virginia, a court in considering whether the prior convictions afforded a proper basis on which to invoke the recidivist statute has considered whether, in a prior trial, the defendant was represented by counsel and whether it was a fair and impartial trial. Willoughby v. Smyth, 194 Va. 267, 271, 72 S.E.2d 636, 639. In Virginia, a prior conviction that is on appeal may not be the proper basis for a recidivist charge. White v. Commonwealth, 79 Va. 611. And there appears to be a question whether two prior convictions rendered the same day or at the same term could both be used in a Virginia multiple-offender prosecution. Commonwealth v. Welsh, 4 Va. 57. See Dye v. Skeen, 135 W.Va. 90, 102—103, 62 S.E.2d 681, 688—689, 24 A.L.R.2d 1234.
10
Double jeopardy and ex post facto application of a law are also questions which, as indicated in Reynolds v. Cochran, supra, 365 U.S. p. 529, 81 S.Ct. 723, may well be considered by an imaginative lawyer, who looks critically at the layer of prior convictions on which the recidivist charge rests. We intimate no opinion on whether any of the problems mentioned would arise on petitioner's trial nor, if so, whether any would have merit. We only conclude that a trial on a charge of being a habitual criminal is such a serious one (Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4), the issues presented under Virginia's statute so complex, and the potential prejudice resulting from the absence of counsel so great that the rule we have followed concerning the appointment of counsel in other types of criminal trials2 is equally applicable here.
11
Reversed.
12
(For opinion of Mr. Justice HARLAN, concurring in the result, see Nos. 56 and 57, Oyler v. Boles and Crabtree v. Boles, 368 U.S. 457, 82 S.Ct. 501, 506.
1
He apparently did not appear from the conviction. Fitzgerald v. Smyth, 194 Va. 681, 74 S.E.2d 810, however, allows the deprivation of a constitutional right to be raised by habeas corpus.
2
Williams v. Kaiser, supra; Tomkins v. Missouri, supra; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; Hudson v. North Carolina, 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 1500; McNeal v. Culver, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445.
| 01
|
368 U.S. 487
82 S.Ct. 510
7 L.Ed.2d 473
John MACHIBRODA, Petitioner,v.UNITED STATES.
No. 69.
Argued Dec. 5, 1961.
Decided Feb. 19, 1962.
Curtis R. Reitz, Philadelphia, Pa., for the petitioner.
Mrs. Julia P. Cooper, Washington, D.C., for the respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In 1956 two informations were filed in the United States District Court for the Northern District of Ohio charging the petitioner with having robbed banks in Waterville, Ohio, and Forest, Ohio. Represented by counsel of his own choice, the petitioner waived indictment and pleaded guilty to both charges. Sentence was deferred pending a presentence investigation, and in the interim petitioner appeared as a defense witness at the jury trial of Marvin Breaton, charged with participation in the Waterville bank robbery. At that trial the petitioner testified that he had robbed the Waterville bank, but denied that Breaton had been with him. Breaton was convicted by the jury. Three weeks later the petitioner appeared with counsel before the District Judge for sentencing. During the course of the proceedings the judge inquired if counsel had any statement to make, but did not direct any similar inquiry to the petitioner personally. The court imposed sentence of twenty-five years imprisonment on the first information and fifteen years on the second, the sentences to run consecutively.
2
In 1959 the petitioner instituted the present litigation by filing in the sentencing court a motion under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, to vacate and set aside the sentence he was serving. The motion alleged three grounds upon which it was claimed relief should be granted: that the petitioner's pleas of guilty had not been voluntary, but had been induced by promises made by the Assistant United States Attorney in charge of the prosecution; that in violation of Rule 11 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. the court had accepted the guilty pleas without first determining that they had been made voluntarily; and that in violation of Rule 32(a) of the Federal Rules of Criminal Procedure the court had not inquired if the defendant wished to speak in his own behalf before sentence was imposed. The motion was denied by the District Court without a hearing, 184 F.Supp. 881. The Court of Appeals affirmed, per curiam, 6 Cir., 280 F.2d 379. We granted certiorari to consider seemingly significant questions as to the scope of relief under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, 365 U.S. 842, 81 S.Ct. 806, 5 L.Ed.2d 808.
I.
3
For the reasons stated in Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, we hold that the failure of the District Court specifically to inquire at the time of sentencing whether the petitioner personally wished to make a statement in his own behalf is not of itself an error that can be raised by motion under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 or Rule 35 of the Federal Rules of Criminal Procedure.
II.
4
In support of his claim that his pleas of guilty had been involuntarily made, the petitioner's motion and supporting affidavit set out detailed factual allegations. Specifically, the motion and affidavit alleged that on three separate occasions, identified as to time and place, an Assistant United States Attorney had promised the petitioner that he would receive a total prison sentence of not more than twenty years if he pleaded guilty to both informations. These promises were said to have been made upon the authority of the United States Attorney and to be agreeable to the District Judge. It was alleged that the petitioner had been cautioned not to tell his own lawyer about the conversations. It was further alleged that when the petitioner threatened to advise his lawyer and the court of what had transpired, the Assistant United States Attorney had told him that if he 'insisted in making a scene,' certain unsettled matters concerning two other robberies would be added to the petitioner's difficulties. Finally, the motion and affidavit alleged that the petitioner had written two letters to the sentencing court and two letters to the Attorney General of the United States 'relative to the misrepresentations' by the Assistant United States Attorney, to which he had received no reply.1
5
The Government filed a memorandum in opposition to the petitioner's motion, attaching an affidavit of the Assistant United States Attorney. The affidavit emphatically denied any promises or coercion with respect to the petitioner's pleas of guilty, but did admit that the Assistant United States Attorney had had a conversation with the petitioner in the county jail the day before Breaton's trial, at which time the petitioner was told he was about to be given his last opportunity to tell the truth and that the court, in sentencing, might well take into consideration the petitioner's refusal to talk.
6
Without a hearing the District Judge determined that the petitioner's allegations as to an agreement with the Assistant United States Attorney were false. The court noted that it had never received either of the two letters referred to by the petitioner, but had received a letter purportedly from him six months after sentencing, which did not mention any agreement, but simply requested that the sentences be made concurrent, rather than consecutive. The court further noted that the petitioner had not complained when no request for a reduction of sentence was made by the United States Attorney within sixty days after sentencing, and that instead, the petitioner had waited almost two and a half years to file the present motion.
7
There can be no doubt that, if the allegations contained in the petitioner's motion and affidavit are true, he is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack. See Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579, reversing, 5 Cir., 246 F.2d 571.2 'A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.' Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009.
8
The District Court recognized that the 'charges of an agreement between a former Assistant United States Attorney and the defendant are serious,' and stated that if 'this Court had any doubt as to their falsity it would require a hearing.' The court determined, however, that the combination of factual inferences already mentioned 'conclusively indicates the falsity of the defendant's allegations.' 184 F.Supp. at 883.
9
We think the District Court did not proceed in conformity with the provisions of 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, when it made findings on controverted issues of fact without notice to the petitioner and without a hearing. United States v. Hayman, 342 U.S. 205, 220, 72 S.Ct. 263, 96 L.Ed. 232. The statute requires a District Court to 'grant a prompt hearing' when such a motion is filed, and to 'determine the issues and make findings of fact and conclusions of law with respect thereto' unless 'the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'3 This was not a case where the issues raised by the motion were conclusively determined either by the motion itself or by the 'files and records' in the trial court. The factual allegations contained in the petitioner's motion and affidavit, and put in issue by the affidavit filed with the Government's response, related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light. Nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recollection.
10
We cannot agree with the Government that a hearing in this case would be futile because of the apparent lack of any eyewitnesses to the occurrences alleged, other than the petitioner himself and the Assistant United States Attorney. The petitioner's motion and affidavit contain charges which are detailed and specific. It is not unreasonable to suppose that many of the material allegations can either be corroborated or disproved by the visitors' records of the county jail where the petitioner was confined, the mail records of the penitentiary to which he was sent, and other such sources. 'Not by the pleadings and the affidavits, but by the whole of the testimony, must it be determined whether the petitioner has carried his burden of proof and shown his right to a discharge. The Government's contention that his allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence. On this record it is his right to be heard.' Walker v. Johnston, 312 U.S. 275, at 287, 61 S.Ct. 574, 579.
11
What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.4 Whether the petition in the present case can appropriately be disposed of without the presence of the petitioner at the hearing is a question to be resolved in the further proceedings in the District Court.
12
There will always be marginal cases, and this case is not far from the line. But the specific and detailed factual assertions of the petitioner, while improbable, cannot at this juncture be said to be incredible. If the allegations are true, the petitioner is clearly entitled to relief. Accordingly, we think the function of 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 can be served in this case only by affording the hearing which its provisions require.
13
Vacated and remanded.
14
The Chief Justice, Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur in the Court's judgment and opinion except as to Part I, from which they dissent for the reasons set out in their dissent in Hill v. United States, 368 U.S. 430, 82 S.Ct. 472.
15
Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
16
The Court awards petitioner, a bank robber serving sentences in Alcatraz, a hearing on a § 2255 petition which it admits is 'not far from the line' marking those applications the trial judge may ordinarily deny. If this be true, the doubt should be resolved in support of the decision below, not in the destruction of it. The experienced trial judge, who had been with this case from the very beginning, found the files and records conclusively show to be false petitioner's contention that his pleas of guilty were induced by promises of leniency. Accordingly, petitioner's application under § 2255 was dismissed without a hearing in exact compliance with that section. The Court of Appeals affirmed this dismissal. This Court now rejects the inferences drawn from the files and records by the courts below and substitutes its own finding that these materials do not conclusively belie petitioner's story and that it is necessary to go outside the files and records to discover the truth of the matter. With this conclusion I cannot agree.1 It represents not only a failure to give due deference to the inferences drawn by the two lower courts but an unwarranted restriction of the summary disposition provision of § 2255. The opinion is an invitation to prisoners, always seeking a sojourn from their keepers, to swear to 'Munchausen' tales when self-interest readily leads to self-deception in § 2255 applications. Once the opinion goes the rounds of our prisons, we will likely be plagued with a rash of such spurious applications.2
17
The record shows that petitioner, who had previously been convicted of armed robbery, participated in four bank robberies in Ohio, which at the point of a sawed-off shotgun netted over $169,000. After the last of these robberies, the Waterville State Savings Bank, he escaped to Canada. He was arrested there and upon waiver of extradition was returned to Ohio. An information was filed charging petitioner and one Breaton with the robbery of the Waterville Bank. Both signed in open court waivers of indictment on the charges. A week later another information was filed against the petitioner alone charging him with the robbery of the First National Bank of Forest. Petitioner, who was accompanied by counsel throughout, again filed a waiver of indictment, and at this time he pleaded guilty to both informations. The trial judge called for a presentence report, and petitioner was returned to jail.
18
In the interim between pleading and sentencing, petitioner pursuant to a subpoena testified on behalf of the defense at the trial of his codefendant Breaton. He admitted that he had committed the Waterville robbery but denied that Breaton was in anywise connected with it. He claimed that another person, presently unknown to him, whom he had picked up in a bar in Canada was his accomplice. He testified that they had driven together from Canada to Waterville, but he insisted that he not only did not know his accomplice's name but could not describe him. State witnesses testified that petitioner had stated in their presence that Breaton was the accomplice. The jury disbelieved petitioner and found Breaton guilty. Shortly thereafter petitioner appeared for sentencing before the same judge who had presided over Breaton's trial and was given a total of 40 years, 25 in the Waterville and 15 in the Forest robbery.
19
Three years later petitioner filed this application before the same trial judge claiming that an Assistant United States Attorney, with full authority of his superior and with the implied consent of the judge, promised him a total sentence of 20 years, rather than the 40 which he had received, in return for a waiver of indictment in the second case and a plea of guilty in each case. He alleged that the Assistant had contacted him in the local jail twice before sentencing and once immediately afterwards. The latter occasion was to reassure him that the sentence would be reduced to 20 years within 60 days. The Government contested these allegations and filed a detailed affidavit by the Assistant specifically denying each of the charges.
20
An examination of the files and records in this case reveals that petitioner clearly outspoke himself. If a deal had been made, it borders on the incredible that petitioner would sit quietly in prison for over two and onehalf years after the prosecutor had reneged on his promise.3 To my mind it is preposterous to think that the prosecutor would make the trade alleged when before any promises were allegedly made not only had petitioner waived indictment on the Waterville robbery, which was the more serious of the two charges, but his attorney in his presence had mentioned to the judge in open court the 'possibility of another information being filed' and had indicated a clear intention to waive indictment on 'both informations' and to plead guilty to at least one. Moreover, experienced criminals such as petitioner know that judges, not prosecutors, control sentences. Petitioner says the Assistant had the 'implied' consent of the judge. Certainly this would have not been sufficient for one so experienced as petitioner. The pledge he alleges the Assistant exacted as to silence with reference to his attorney did not include the judge. Despite this and even though he appeared before the judge on three occasions subsequent to the alleged 'deal,' he never mentioned the same nor asked for any conference with the judge in camera. Finally, it is inconceivable that credence could be given to a story of an agreement of leniency told by a hardened criminal who before the alleged agreement was performed had testified against the Government and favorable to a codefendant. Prosecutors make deals, if at all, for testimony to support their prosecutions, not to destroy them.
21
In addition to being unbelievable in light of the files and records, petitioner's claim is inconsistent therewith. To explain his tardiness in seeking formal relief, petitioner alleges several previous informal attempts by letter to prod the Government into fulfilling its obligations. Yet the protest letters supposedly sent to the trial judge were not received by him and were not in the files where under departmental routine they would have been deposited had they been received. But petitioner's file is not barren of letters for it contains one written by petitioner to the trial judge several months after the Assistant United States Attorney had failed to perform the purported bargain. This letter, however, did not even remotely suggest an agreement but merely sought a reduction of sentence based upon repentance. Then, of course, there is petitioner's own admission at the time his guilty pleas were entered that such action was voluntarily taken.
22
For the Court to say that an application so inconsistent and incredible cannot be dispatched without a hearing leaves the summary dismissal exception of § 2255 meaningless.4 As pointed out by the Government, to require a hearing in this case means 'that the number of hearings held on motions under Section 2255 would be limited only by the imagination and ingenuity of the prisoners involved.' An ingenious prisoner can deliberately bait his application with claims beyond independent proof or disproof and then demand that he be brought to court to tell the story known only to him, no matter how inconsistent and incredible it may be in light of the files and records. The Court 'supposes' that in the present case 'many of the material allegations can either be corroborated or disproved by the visitors' records of the county jail where the petitioner was confined, the mail records of the penitentiary to which he was sent, and such other sources.' If such independent proof is available, which I doubt,5 then these avenues should be explored before permitting the petitioner to make a trip into town.6 Why not ask for a response in this regard, as we often do, before ordering a hearing with the attendant expense and hazards. The Court implies that a full hearing may not be required in a given case if the allegations are sufficiently 'vague, conclusory, or palpably incredible.' Although I would not require any hearing under the circumstances of this case, I submit that if upon remand it develops that no letters were mailed and that the Assistant United States Attorney did not visit the jail as claimed, then even the rationale of the Court's opinion would not require that petitioner be summoned to tell his story in court.7
23
Alcatraz is a maximum security institution housing dangerous incorrigibles, and petitioner wants a change of scenery. The Court has left the door ajar for a trip from California to Ohio along with the accompanying hazards. I would deny it.
1
The affidavit filed with the petitioner's motion was as follows:
'John Machibroda, having been duly sworn according to law deposes and says that he is the petitioner in an action filed in this Court entitled 'Motion To Vacate sentence' and this affidavit is made in support thereof:
'1. That affiant was interviewed in the County Jail on or about February 21, 1956, by one Clarence M. Condon who represented himself to be as Assistant United States Attorney in charge of the prosecution of alleged bank robberies committed at the Waterville and Forest Banks. (Later designated as Cases 10345 and 10348). The County Jail where the interview took place is situated in Toledo, Ohio.
'2. That the said Clarence M. Condon represented to the Affiant that he had the authority to speak for the United States Attorney and the United States District Judge in the matter of the amount of sentence that would be imposed in Cases Nos. 10345 and 10348.
'3. That the said Clarence M. Condon represented to the Affiant that if the Affiant would waive indictment in case no. 10348 and plead guilty in cases Nos. 10345 and 10348 the Court would not impose a sentence in the excess of twenty (20) years in Case No. 10345 and that any sentence imposed in Case No. 10348 would not be in the excess of ten (10) years and would be ordered served concurrently with the term imposed in case No. 10345.
'4. That on the assurance of the said Clarence M. Condon that the sentences would be imposed as heretofore set out in paragraph 3, above, the Affiant agreed to waive indictment in case no. 10348 and plead guilty to both cases.* (This interview was held on or about February 21, 1956.)
*
'At that time the Affiant had already waived indictment in case No. 10345.
'5. That the said Clarence M. Condon instructed the Affiant to advise his Attorney, John Schuchmann, that he would waive indictment in case no. 10348 and plead guilty to both cases.
'6. That the said Clarence M. Condon cautioned the Affiant to refrain from advising the said John Schuchmann of his interviews with Mr. Condon and that an agreement had been reached between the government as represented by Mr. Condon, and the Affiant in the matter of waiver, pleas and sentences.
'7. That on February 24, 1956, Affiant acting on the promises and representations of the said Clarence M. Condon waived indictment in case no. 10348.
'8. That on February 24, 1956, the Affiant acting on the promises and representations of the said Clarence M. Condon pleaded guilty in Cases Nos. 10345 and 10348.
'9. That on or about May 22, 1956, the said Clarence M. Condon again interviewed the Affiant at the County Jail and informed Affiant that because of Affiant's unfavorable testimony at the trial of a co-defendant the Court was vexed and there might be some difficulty in regards to the promised twenty (20) year sentence.
'10. That the said Clarence M. Condon admonished the Affiant that he had tried to warn him during the trial of the co-defendant that Affiant would shortly appear before this Court for sentence.**
**
'The exact words Mr. Condon used to warn the Affiant are to be found in the transcript of the trial of Marvin Ferris Breaton.
'11. That at no time did the Affiant ever represent to Mr. Condon or anyone else that he would testify one way or the other at the trial of the co-defendant. The promise of the maximum sentence of twenty (20) years was predicated solely on the Affiant's agreement to waive indictment and plead guilty to both informations.
'12. That the Affiant immediately became agitated and hotly informed Mr. Condon that he was going to tell his Attorney the
whole story and demand that the Court be informed of the agreement.
'13. That the said Clarence M. Condon assured the Affiant that in the event a sentence in the excess of twenty (20) years was imposed the United States Attorney, himself, would move within sixty (60) days for a reduction of the portion of the sentence in excess of twenty (20) years; that the Affiant had nothing to worry about if he kept his mouth shut; that on the other hand, if Affiant insisted in making a scene in a matter of his own making, there were the unsettled matters of the robberies of the Trotwood and Canal Fulton Banks which would be added to the Affiant's present difficulties.
'14. That on May 23, 1956, the Affiant was sentenced by the Honorable Frank L. Kloeb to twenty-five (25) years in Case No. 10345 and fifteen (15) years in case no. 10348.
'15. That immediately after sentence in an interview with the said Clarence M. Condon, the Affiant was informed he had no reason to worry for as soon as the Judge 'cooled off' the United States Attorney would have the sentence reduced to twenty (20) years as had been promised.
'16. That within a few hours after sentence, the Affiant was on his way to the Federal Penitentiary, Leavenworth, Kansas.
'17. That the sentence was not reduced in sixty (60) days and has not been reduced to date.
'18. That the petitioner wrote two (2) letters to the Honorable Frank L. Kloeb and two (2) letters to the Attorney General of the United States relative to the misrepresentations by the said Clarence M. Condon. These letters were posted in the official prisoner's mail box and the Affiant has failed to receive a reply to any of them.
'19. That the Affiant's previous experience with Court officials has been with the authorities representing the Canadian Government and he found them to honor their commitments. He had no reason to believe that the officials of the United States Courts would do otherwise. His naivete has cost him an extra twenty (20) years in prison.'
2
See also Daniel v. United States, 107 U.S.App.D.C. 110, 274 F.2d 768; Teller v. United States, 6 Cir., 263 F.2d 871; Watson v. United States, 104 U.S.App.D.C. 321, 262 F.2d 33; Euziere v. United States, 10 Cir., 249 F.2d 293; Motley v. United States, 5 Cir., 230 F.2d 110; United States v. Paglia, 2 Cir., 190 F.2d 445.
3
Section 2255 of Title 28 United States Code, 28 U.S.C.A. § 2255, provides in part: 'Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.'
4
Section 2255 of Title 28 United States Code, 28 U.S.C.A. § 2255, also provides, in part: 'A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.'
1
I concur in Part I of the Court's opinion.
2
Section 2255 cases have been steadily on the increase. The fiscal year 1961 saw a new high of 560 applications filed under this section, an increase of 15% over the previous year. The frivolous nature of these applications is indicated by the fact that less than 3% were granted by the District Courts.
3
For a case in which this factor alone was considered sufficient to summarily deny an application, see United States v. Lowe, 173 F.2d 346 (C.A.2d Cir. 1949).
4
In evaluating the inferences to be drawn from the files and records some weight must be accorded the personal recollection of the trial judge. E.g., Dario Sanchez v. United States, 256 F.2d 73 (C.A.1st Cir. 1958). Judge Kloeb observed petitioner at the time he entered his pleas of guilt and again when he was sentenced. He had also listened to petitioner's blatant lies at the trial of his codefendant.
5
Although prisons keep records of letters which actually go out, no record is made of every letter dropped in the mailbox. Jails likewise keep some records of visitors but do not necessarily record which prisoners are interviewed by police investigators and prosecutors, who are there regularly.
6
It could be argued that the visitor and mailing records are part of the 'files and records of the case' within the meaning of § 2255 and that therefore such records could be examined by the trial judge in determining whether a hearing is necessary.
7
28 U.S.C. § 2255, 28 U.S.C.A. § 2255 provides in part that: 'A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.'
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368 U.S. 448
82 S.Ct. 501
7 L.Ed.2d 446
James W. OYLER, Petitioner,v.Otto C. BOLES, Warden. Paul H. CRABTREE, Petitioner, v. Otto C. BOLES, Warden.
Nos. 56 and 57.
Argued Dec. 4, 1961.
Decided Feb. 19, 1962.
David Ginsburg, Washington, D.C., for the petitioners.
George H. Mitchell, Charleston, W. Va., for the respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
The petitioners in these consolidated cases are serving life sentences imposed under West Virginia's habitual criminal statute. This Act provides for a mandatory life sentence upon the third conviction 'of a crime punishable by confinement in a penitentiary.'1 The increased penalty is to be invoked by an information filed by the prosecuting attorney 'immediately upon conviction and before sentence.'2 Alleging that this Act had been applied without advance notice and to only a minority of those subject to its provisions, in violation respectively of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the petitioners filed separate petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia. Both of their petitions were denied without opinion. Unlike Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442, here each of the petitioners was represented by counsel at the time he was sentenced. Finding the cases representative of the many recidivist cases that have been docketed in this Court the past few Terms, we granted certiorari. 365 U.S. 810, 81 S.Ct. 701, 5 L.Ed.2d 690. We now affirm the judgment in each case.
2
William Oyler, the petitioner in No. 56, was convicted of murder in the second degree on February 5, 1953, which offense carried a penalty of from 5 to 18 years' imprisonment. Sentence was deferred, and on February 11 his motion for a new trial was overruled. On that same date the Prosecuting Attorney requested and was granted leave to file an information in writing alleging that Oyler was the same person who had suffered three prior convictions in Pennsylvania which were punishable by confinement in a penitentiary. After being cautioned as to the effect of such information, Oyler, accompanied by his counsel, acknowledged in open court that he was the person named in the information. The court then determined that the defendant had thrice been convicted of crimes punishable by confinement in a penitentiary and sentenced him to life imprisonment. In so doing the court indicated that the life sentence was mandatory under the statute and recommended that Oyler be paroled as soon as he was eligible. In 1960 Oyler filed a habeas corpus application in the Supreme Court of Appeals alleging a denial of due process under the Fourteenth Amendment in that he had not been given advance notice of his prosecution as a recidivist which prevented him from showing the inapplicability of the habitual criminal law. The statute was alleged to be inapplicable because he had never been sentenced to imprisonment in a penitentiary although he had been convicted of crimes subjecting him to the possibility of such sentence.3 He also attacked his sentence on the equal protection ground previously set forth.
3
In 1957 Paul Crabtree, the petitioner in No. 57, pleaded guilty to forging a $35 check, which offense carried a penalty of from 2 to 10 years' imprisonment. Sentence was deferred, and a week later the Prosecuting Attorney informed the court that Crabtree had suffered two previous felony convictions, one in the State of Washington and one in West Virginia. The trial judge, after cautioning Crabtree of the effect of the information and his rights under it, inquired if he was in fact the accused person. Crabtree, who had been represented by counsel throughout, admitted in open court that he was such person. Upon this admission and the accused's further statement that he had nothing more to say, the court proceeded to sentence him to life imprisonment. In 1960 Crabtree sought habeas corpus relief in the Supreme Court of Appeals claiming denial of due process because of the absence of notice which prevented him from showing he had never been convicted in Walla Walla County, Washington, as had been alleged in the information.4 Like Oyler, he also raised the equal protection ground.
I.
4
Petitioners recognize that the constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge;5 however, they contend that in West Virginia such penalties are being invoked in an unconstitutional manner. It is petitioners' position that procedural due process under the Fourteenth Amendment requires notice of the habitual criminal accusation before the trial on the third offense or at least in time to afford a reasonable opportunity to meet the recidivist charge.
5
Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is 'essentially independent' of the determination of guilt on the underlying substantive offense. Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 4, 99 L.Ed. 4 (1954). Thus, although the habitual criminal issue may be combined with the trial of the felony charge, 'it is a distinct issue, and it may appropriately be the subject of separate determination.' Graham v. West Virginia, 224 U.S. 616, 625, 32 S.Ct. 583, 586, 56 L.Ed. 917 (1912). If West Virginia chooses to handle the matter as two separate proceedings, due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding.6 See Graham v. West Virginia, supra.
6
Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense. Such requirements are implicit within our decisions in Chewning v. Cunningham, supra, 368 U.S. -, 82 S.Ct. 498; Reynolds v. Cochran, 365 U.S. 525, 81 S.Ct. 723, 5 L.Ed.2d 754 (1961); Chandler v. Fretag, supra. Although these cases were specifically concerned with the right to assistance of counsel, it would have been an idle accomplishment to say that due process requires counsel but not the right to reasonable notice and opportunity to be heard.
7
As interpreted by its highest court, West Virginia's recidivist statute does not require the State to notify the defendant prior to trial on the substantive offense that information of his prior convictions will be presented in the event he is found guilty.7 Thus notice of the State's invocation of the statute is first brought home to the accused when, after conviction on the substantive offense but before sentencing, the information is read to him in open court as was done here. At this point petitioners were required to plead to the information. The statute expressly provides for a jury trial on the issue of identity if the accused either denies he is the person named in the information or just remains silent.8
8
But the petitioners, who were represented by counsel, neither denied they were the persons named nor remained silent. Nor did they object or seek a continuance on the ground that they had not received adequate notice and needed more time to determine how to respond with respect to the issue of their identity. Rather, both petitioners rendered further inquiry along this line unnecessary by their acknowledgments in open court that they were the same persons who had previously been convicted. In such circumstances the petitioners are in no position now to assert that they were not given a fair opportunity to respond to the allegations as to their identity.
9
They assert, however, that they would have raised other defenses if they had been given adequate notice of the recidivist charges. It is, of course, true that identity is not the only issue presented in a recidivist proceeding, for, as pointed out by Mr. Justice Hughes (later Chief Justice) when this Court first reviewed West Virginia's habitual criminal law, this statute contemplates valid convictions which have not been subsequently mullified. Graham v. West Virginia, supra. A list of the more obvious issues would also include such matters as whether the previous convictions are of the character contemplated by West Virginia's statute and whether the required procedure has been followed in invoking it. Indeed, we may assume that any infirmities in the prior convictions open to collateral attack could have been reached in the recidivist proceedings, either because the state law so permits9 or due process so requires. But this is a question we need not and do not decide, for neither the petitioners nor their counsel attempted during the recidivist proceedings to raise the issues which they now seek to raise or, indeed, any other issues. They were not, therefore, denied the right to do so. The petitioners' claim that they were deprived of due process because of inadequate opportunity to contest the habitual criminal accusation must be rejected in these cases. Each of the petitioners had a lawyer at his side, and neither the petitioners nor their counsel sought in any way to raise any matters in defense or intimated that a continuance was needed to investigate the existence of any possible defense. On the contrary, the record clearly shows that both petitioners personally and through their lawyers conceded the applicability of the law's sanctions to the circumstances of their cases.
II.
10
Petitioners also claim they were denied the equal protection of law guaranteed by the Fourteenth Amendment. In his petition for a writ of habeas corpus to the Supreme Court of Appeals of West Virginia, Oyler stated:
11
'Petitioner was discriminated against as an Habitual Criminal in that from January, 1940, to June, 1955, there were six men sentenced in the Taylor County Circuit Court who were subject to prosecution as Habitual offenders, Petitioner was the only man thus sentenced during this period. It is a matter of record that the five men who were not prosecuted as Habitual Criminals during this period, all had three or more felony convictions and sentences as adults, and Petitioner's former convictions were a result of Juvenile Court actions.
12
'#5. The Petitioner was discriminated against by selective use of a mandatory State Statute, in that 904 men who were known offenders throughout the State of West Virginia were not sentenced as required by the mandatory Statutes, Chapter 61, Article 11, Sections 18 and 19 of the Code. Equal Protection and Equal Justice was (sic) denied.'
13
Statistical data based on prison records were appended to the petition to support the latter allegation. Crabtree in his petition included similar statistical support and alleged:
14
'The said Statute are (sic) administered and applied in such a manner as to be in violation of Equal Protection and Equal Justice therefor in conflict with the Fourteenth Amendment to the Constitution of the United States.'
15
Thus petitioners' contention is that the habitual criminal statute imposes a mandatory duty on the prosecuting authorities to seek the severer penalty against all persons coming within the statutory standards but that it is done only in a minority of cases.10 This, petitioners argue, denies equal protection to those persons against whom the heavier penalty is enforced. We note that it is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. The statistics merely show that according to penitentiary records a high percentage of those subject to the law have not been proceeded against. There is no indication that these records of previous convictions, which may not have been compiled until after the three-time offenders had reached the penitentiary, were available to the prosecutors.11 Hence the allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses. This does not deny equal protection due petitioners under the Fourteenth Amendment. See Sanders v. Waters, 199 F.2d 317 (C.A. 10th Cir. 1952); Oregon v. Hicks. 213 Or. 619, 325 P.2d 794 (1958).
16
Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra; cf. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (by implication).
17
The other points raised by petitioners, such as the misstatement of the Washington county in which Crabtree was convicted and the fact that Oyler actually served in a Pennsylvania correctional home rather than a penitentiary, all involve state questions with which we are not concerned. Since the highest court of West Virginia handed down no opinion, we do not know what questions its judgment foreclosed. If any remain open, our judgment would not affect a test of them in appropriate state proceedings.
18
Affirmed.
19
Mr. Justice HARLAN, concurring.
20
I join the Court's opinion in Oyler v. Boles and Crabtree v. Boles, Nos. 56 and 57, and concur in the result in Chewning v. Cunningham, No. 63, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442.
21
In my view, the issues decided in Oyler and Crabtree, on the one hand, and in Chewning, on the other, represent opposite sides of the same coin. Since their interrelationship does not appear from the opinions of the Court, and since I cannot agree with the grounds of decision stated in Chewning, I file this separate opinion.
22
The statutes of both Virginia and West Virginia provide for enhanced punishment of multiple offenders. Apparently under the practice of neither State is the alleged recidivist given advance notice, either before the trial for his latest offense or after that trial but before sentencing, of the charges that are made in the multiple-offense accusation. It is not until he appears in open court and hears the prosecutor's information read to him that the accused learns on which convictions it is that the State relies in support of its demand for an increased sentence. And it is then and there that he must plead and state what his defense is, if he has any. This procedure was followed in each of the present cases.
23
For an individual unrepresented by counsel, this is surely too precipitous a procedure to satisfy the standards of fairness required of state courts by the Due Process Clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682; see Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337; Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. One who is untutored in the law cannot help but be bewildered by this sudden presentation of the charges against him and the demand for an immediate response. Without suggesting that advance notice of any particular duration must be afforded, still less that such notice must be given before trial or sentencing on the latest offense, had the petitioners in Oyler and Crabtree been without the aid of counsel at their multiple-offender hearings, I would entertain grave doubts as to the constitutionality of the procedure from which their increased sentences resulted.
24
But the records in these cases reveal that both Oyler and Crabtree had counsel at hand when the multiple-offender hearing was held and when they were asked to plead. Counsel could have requested a continuance in order to look into the validity of the previous convictions or other possible defenses to the recidivist charges, or, if there was any doubt, to establish the identities of the previous offenders. They chose not to do so, and I think this choice forecloses the petitioners' claims that they were not given adequate notice and opportunity to prepare a defense.
25
In Chewning, however, the petitioner had no counsel. He was taken from the state penitentiary without any warning of what was in store for him, and was accused in open court of having been convicted on three prior occasions. His allegations that he requested the assignment of counsel, and that such request was denied, are not controverted.1
26
The Court strikes down the enhanced sentence, despite the apparent similarity between this claim and the one rejected in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683, because it holds that various defenses that were available to Chewning under Virginia law could not have been known to or presented by a layman. To me, the bare possibility that any of these improbable claims could have been asserted does not amount to the 'exceptional circumstances' which, under existing law, e.g., Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, must be present before the Fourteenth Amendment imposes on the State a duty to provide counsel for an indigent accused in a noncapital case. Nor do I think that a decision on these grounds can be reconciled with the holding in Gryger, in which the Court rejected the proposition, made by able appointed counsel, that certain contentions, much like those here suggested by the Court, could have been offered had the petitioner in that case been provided with counsel for his multiple-offender hearing.
27
What does distinguish this case from Gryger, however, and persuades me that the failure to supply assistance of counsel amounted to a denial of the procedural fairness assured by the Fourteenth Amendment, is the want of adequate notice in advance of the hearing. In Gryger, a copy of the information listing the prior occasions on which the accused had been convicted was served upon him more than six and a half months before he was brought into court and asked to plead. This was more than ample time for him to engage an attorney, request assignment of counsel, or decide for himself what line of defense to take.2 In the case before us now, Chewning was given no such opportunity. Hence I agree that the least that fairness required was that he be provided with counsel so as to be advised of the courses available to him. With no opportunity to get such advice, I do not think that his own failure to ask for a continuance has any legal significance.
28
Mr. Justice DOUGLAS, with whom The Chief Justice, Mr. Justice BLACK, and Mr. Justice BRENNAN concur, dissenting.
29
When this Court, years ago, sustained an application of West Virginia's habitual criminal law, it said:
30
'Full opportunity was accorded to the prisoner to meet the allegation of former conviction. Plainly, the statute contemplated a valid conviction which had not been set aside or the consequences of which had not been removed by absolute pardon. No question as to this can be raised here, for the prisoner in no way sought to contest the validity or unimpaired character of the former judgments, but pleaded that he was not the person who had thus been convicted. On this issue he had due hearing before a jury.' Graham v. West Virginia, 224 U.S. 616, 625, 32 S.Ct. 583, 586, 56 L.Ed. 917.
31
The issue now presented is broader. It is what the procedure used in making a charge that a person is an habitual criminal is necessary to satisfy the requirements of due process.
32
It is said that the record fails to show that this precise point was raised at the trial. If so, West Virginia might make that an adequate state ground, though it should be noted in passing that the court in Rhea v. Edwards, D.C., 136 F.Supp. 671, aff'd, 6 Cir., 238 F.2d 850, held that Tennessee's former procedure in habitual-offender cases violated due process where inadequate notice was given, even though the accused apparently had not made this an issue at the trial. Cf. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. In these cases, however, West Virginia nowhere suggests that the issue of due process is not properly here. Rather the argument is that the requirements of due process are satisfied though the issue to be tried is restricted to the identity of the accused.
33
A hearing under these habitual-offender statutes requires 'a judicial hearing' in order to comport with due process. Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 4, 99 L.Ed. 4. The Chandler case held that denial of an opportunity for an accused to retain a lawyer to represent him deprives him of due process. And see Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442. If due process is to be satisfied, the full procedural panoply of the Bill of Rights, so far as notice and an opportunity to defend are concerned, must be afforded the accused. The charge of being an habitual offender is as effectively refuted by proof that there was no prior conviction or that the prior convictions were not penitentiary offenses as by proof that the accused is not the person charged with the new offense. The charge of being an habitual offender is also effectively refuted by proof that the prior convictions were not constitutionally valid as, for example, where one went to trial without a lawyer under circumstances where the appointment of someone to represent him was a requirement of due process. Denial or absence of counsel is an issue raisable on collateral attack of state judgments. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. That is an inquiry that should also be permitted in these habitual-offender cases, if the procedure employed is to satisfy due process.
34
I mention the right of counsel merely to underline the gravity of these accusations. Unless any infirmities in the prior convictions that can be reached on collateral attack1 can be reached in these proceedings, the wrong done is seriously compounded.
35
As I understand it, the opinion of the Court concedes as much. But it affirms the convictions, even though no prior notice of the habitual-offender charge was given. Without any advance warning the present informations were filed at times when petitioners were in court in connection with their most recent convictions. The omission of formal notice has been held fatal in proceedings under recidivist statutes. United States ex rel. Collins v. Claudy, 3 Cir., 204 F.2d 624; Edwards v. Rhea, 6 Cir., 238 F.2d 850. I think reasonable prior notice is necessary to satisfy due process—notice given far enough in advance to allow for an opportunity to defend. A 9-day notice was deemed adequate in Johnson v. Kansas, 10 Cir., 284 F.2d 344, 345, the court saying:
36
'The fundamental requisites of due process, when the statute is to be invoked, are reasonable notice and an opportunity for a full and complete hearing, with the right to the aid of competent counsel.'
37
Respondent concedes that the notice necessary for a criminal trial was not given. Respondent indeed maintains that no notice is necessary:
38
'The primary purpose for affording a defendant notice is to inform him of the charge against him, and to give him a reasonable time in which to prepare his defense. Such reason for notice does not exist in the instant cases pertaining to the application of the West Virginia habitual criminal act.' Brief, p. 5.
39
Adequate notice of the charge under these habitual-offender statutes is an important as adequate notice of the charge in an ordinary criminal trial. The notice required must be commensurate with the range and complexity of issues that concededly may be tendered. The requirements of notice, like those for a fair hearing, are basic. As we stated in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682: 'A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence * * *.' That case was one in which a 'one-man grand jury' charged a witness with giving false and evasive testimony and summarily convicted him. Its principle is equally applicable here. Until there is a charge fairly made and fairly tried, procedural due process has not been satisfied.2
40
Unless this principle is adhered to in proceedings under these recidivist statutes, serious penalties may be imposed without any real opportunity to defend.
1
W.Va.Code, 1961, § 6130.
2
W.Va.Code, 1961, § 6131.
3
The statute has been interpreted as requiring only that the previous convictions be such that imprisonment in a penitentiary could have been imposed. State ex rel. Johnson v. Skeen, 140 W.Va. 896, 87 S.E.2d 521 (1955).
4
The record indicates that instead of in Walla Walla Crabtree was convicted in Yakima County, Washington. At the time he was sentenced as a habitual criminal, he admitted that he had previously been sentenced to imprisonment in the State of Washington for a term of 20 years.
5
E.g., Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895). West Virginia's statute is a carryover from the laws of Virginia, Va.Code, 1860, c. 199, §§ 25—26, and became its law when West Virginia was organized as a separate State. Since that time it has remained basically the same, save for a 1943 procedural amendment which provided that the statute should be invoked by information filed after conviction rather than by allegation in the indictment upon which the subject was being prosecuted for a substantive offense. In 1912 this Court upheld the constitutionality of the statute. Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).
6
Any other rule would place a difficult burden on the imposition of a recidivist penalty. Although the fact of prior conviction is within the knowledge of the defendant, often this knowledge does not come home to the prosecutor until after the trial, and in many cases the prior convictions are not discovered until the defendant reaches the penitentiary.
7
West Virginia v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952).
8
W.Va.Code, 1961, § 6131.
9
The fact that the statute expressly provides for a jury trial on the issue of identity and is silent as to how other issues are to be determined does not foreclose the raising of issues other than identity. This is especially clear in the case of legal issues, such as the petitioners now raise, where a jury trial would be inappropriate.
10
The denial of relief by West Virginia's highest court may have involved the determination that the statute, like its counterpart § 6260, infra, note 11, is not mandatory. Such an interpretation would be binding upon this Court. However, we need not inquire into this point.
11
After prisoners are confined in the penitentiary, the warden is granted discretion as to the invocation of the severer penalty. W.Va.Code, 1961, § 6260. Thus the failure to invoke the penalty in the cases cited by petitioners may reflect the exercise of such discretion.
1
Although petitioner did not allege in his habeas corpus petition that he was indigent at the time of the recidivist hearing, the state court apparently proceeded on the assumption that he had met the necessary poverty standard.
2
It is true that a subsidiary claim in Gryger was that the petitioner had been denied access to legal materials which were necessary in the preparation of his defense. But he was at least able to reflect calmly on the factual accusation being made against him and was able to plan in advance what plea to enter and how best to present his case.
1
Constitutional infirmities in criminal convictions in federal courts were declared to be 'a jurisdictional bar to a valid conviction' and assertable by habeas corpus in Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, decided in 1938.
2
Any contrary implications from Graham v. West Virginia, supra, must be read in light of the fact that the broadening reach of constitutional issues raisable by state habeas corpus followed our decision in Johnson v. Zerbst, supra, note 1. Graham v. West Virginia was decided in 1912; Johnson v. Zerbst in 1938; and the broadening attack on state court judgments on constitutional grounds in collateral proceedings started with Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. And see Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; Williams v. Kaiser, supra.
| 34
|
368 U.S. 464
82 S.Ct. 486
7 L.Ed.2d 458
Lou POLLER, Petitioner,v.COLUMBIA BROADCASTING SYSTEM, INC., et al.
No. 45.
Argued Nov. 13 and 14, 1961.
Decided Feb. 19, 1962.
Morris Wolf, Philadelphia, Pa., for petitioner.
Samuel I. Rosenman, New York City, for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
The question involved here is whether this treble damage action based on alleged violations of the restraint of trade and monopoly sections of the Sherman Law1 was rightly terminated by a summary judgment of dismissal. The petitioner, Lou Poller, is the assignee of the Midwest Broadcasting Company, a dissolved corporation. In 1954 Midwest was the owner and operator of WCAN, an ultra high frequency (UHF)2 broadcasting station located in Milwaukee. The station was affiliated with the Columbia Broadcasting System network and was of the alleged value of $2,000,000. Poller charged that the respondents in 1954 entered into an unlawful conspiracy to eliminate WCAN from the broadcast field in Milwaukee.3 It was a part of the conspiracy that respondent Holt was to secure in his name an option to purchase WOKY, a competing but inferior UHF broadcaster in Milwaukee. When and if the Federal Communications Commission amended its multiple ownership rules, then under consideration, so as to permit CBS to own UHF stations in addition to its VHF ones, Holt was to assign his option to CBS if it so elected. In that event, it was agreed CBS would cancel its affiliation agreement with WCAN pursuant to its option in that contract and in due course consummate its purchase of WOKY. This would place WCAN in the precarious position of competing with the two major national networks with stations in Milwaukee. Being unable to survive such competition, its only course would be to liquidate at distressed prices its valuable equipment and facilities only recently acquired. CBS might then acquire them at its own price for use in its new operation which was necessary because of the inferior quality of those of WOKY. CBS would then have Midwest's superior facilities and equipment which with the WOKY license would enable it to start broadcasting at a minimum expense and the least possible delay. Poller further claimed that the overall purpose of CBS was to destroy UHF broadcasting, which had only been permitted to enter the field in 1952, in order to protect its vast interest in VHF stations throughout the United States. Finally, he alleged the conspiracy was so successful that CBS not only acquired WCAN at a loss of $1,450,000 to Midwest but that the latter was obliged to buy the facilities and equipment of WOKY at exorbitant prices and to agree to continue broadcasting from the latter's premises—which was done 'in order to pretend that there was no restraint of trade or elimination of competition * * *.' However, WCAN continued in business only 10 days after CBS started its broadcasts on February 17, 1955. CBS discontinued UHF broadcasting in 1959 when it became affiliated with a Milwaukee VHF station.
2
At the hearing on the motion for summary judgment the trial judge held that the injury suffered was damnum absque injuria, stating that CBS had a right to purchase WOKY, subject to Federal Communications Commission approval, and to cancel its affiliation contract with WCAN. 174 F.Supp 802. The Court of Appeals affirmed with Judge Washington dissenting, 109 U.S.App.D.C. 170, 284 F.2d 599, and we granted certiorari, 365 U.S. 840, 81 S.Ct. 804, 5 L.Ed.2d 807. We now conclude that there was a genuine issue as to material facts and that summary judgment was not therefore in order.
I.
3
Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case 'show that (except as to the amount of diamages) there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Rule 56(c), Fed.Rules Civ.Proc., 28 U.S.C.A. This rule authorizes summary judgment 'only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, * * * (and where) no genuine issue remains for trial * * * (for) the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.' Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944). We now examine the contentions of the parties to determine whether under the rule summary judgment was proper.
II.
4
The respondents in their motion for summary judgment depended upon the affidavits of four persons. The first is Richard Salant, Vice President of CBS ; another, Jay Eliasberg, Director of its Research Division; a third, Lee Bartell, who made the sale of WOKY to CBS at a $50,000 profit; finally, Thad Holt, a codefendant who received $10,000 from the transaction. These were supplemented by material taken from petitioner's depositions of Salant and CBS President Stanton. It is readily apparent that each of these persons was an interested party.
5
Respondents appear to place most reliance on the Salant testimony, and we shall, therefore, take it up in some detail. It projects three defenses, the first being that there was no conspiracy for the following reasons: CBS—TV was not a separate entity but only a division of CBS, and therefore there could be no conspiracy between the two; Holt, the cover man in securing the option and purchase of WOKY, 'had been given the particular job' by CBS and therefore was not a conspirator; and Bartell never shared in any illegal purpose that would bring him into the conspiracy. Secondly, in any event, the only issue in the case is the legality of the cancellation of the affiliation agreement by CBS which was merely the legal exercise by CBS of 'the normal right of a producer to select the outlet for its product.' And, finally, the monopoly charges are entirely 'frivolous.' The trial judge accepted the second defense.
III.
6
It may be that CBS by independent action could have exercised its granted right to cancel WCAN's affiliation upon six months' notice and independently purchased its own outlet in Milwaukee. However, if such a cancellation and purchase were part and parcel of unlawful conduct or agreement with others or were conceived in a purpose to unreasonably restrain trade, control a market, or monopolize, then such conduct might well run afoul of the Sherman Law. See Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 624—625, 73 S.Ct. 872, 889, 97 L.Ed. 1277 (1953); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 375, 47 S.Ct. 400, 404, 71 L.Ed. 684 (1927). Poller alleges and the affidavits, depositions, and exhibits indicate much more than the free exercise by CBS of the granted right of cancellation. A conspiracy is alleged to restrain trade in the Milwaukee television market; to eliminate WCAN from that market; to secure its facilities at depressed prices; and to occupy the UHF band in that market exclusively. The right of cancellation was merely one of the means used to effectuate this conspiracy. Moreover, 'in its wider sense' Poller claims that a part of their conspiracy was 'to wipe out the most outstanding UHF operator in the county (WCAN) and by wiping him out they destroyed the UHF industry, which was a threat to them, despite their protestations, because of the enormous economic investment they had in VHF.'
7
It is argued that CBS cannot conspire with itself. However, this begs the question for the allegation is that independent parties, i.e., Holt and Bartell, conspired with CBS and its officers.4 While respondents' affidavits assert that Holt acted in good faith as a special agent or employee for CBS and that Bartell was completely free of any evil motives directed toward WCAN, the trial judge indicated a belief that Holt was 'an independent actor' and would have submitted the question of his status to the jury had he not disposed of the case on other grounds. Furthermore, Poller submitted a deposition of Holt, an exhibit to which showed CBS had furnished Holt a complete analysis in writing of the Milwaukee market and the ownership and affiliation of the TV stations there, including WCAN. The deposition revealed that Holt had knowledge that the obvious purpose and necessary effect of the plan would be to eliminate independent UHF in Milwaukee and that he had a personal stake in its success. This included, inter alia, Holt's statements that he met with top CBS officials in New York for a briefing on his role, that he was a close friend of these officials, and that he would have retained the option for himself if unused by CBS. The latter admissions, when coupled with the uncertainty at that time of a Federal Communications Commission rule permitting CBS to purchase WCAN, suggest that the alternative plan was to let Holt exercise the option and take the affiliation if CBS could not. Likewise, Bartell's affidavit, barely a page and a half in the record, does not negative the allegations of conspiracy. Unquestionably, after knowing that Holt had in truth been acting for CBS and that the sale would prove disastrous to WCAN, he did file certain papers with the Federal Communications Commission requesting approval of the sale of WOKY. Poller had no opportunity to cross-examine him although he was a key witness to respondents' theory of the case. And it is noted that even though the transfer was uncontested before the Federal Communications Commission it received approval by a vote of only three Commissioners with the remaining two strongly dissenting.5 It might be that on a trial Poller could substantiate his claims of conspiracy even against Bartell, although this would not be necessary to his case.
8
Respondents' answer to the charge that one of the purposes of the alleged conspiracy was to exert a restraining effect upon the development of UHF is that this is a 'fantastic assumption—for which there is not a shred of evidence.' An analysis of the record seems to indicate that in 1954 prior to the purchase of WOKY there were three UHF channls assigned to Milwaukee by the Federal Communications Commission, two of which (WCAN and WOKY) were operating; that since December 1953 CBS had been studying UHF markets preparatory to an expected change in Commission rules that would allow it to purchase two UHF stations in addition to its five VHF ones; that its staff rated Pittsburgh, St. Louis, New Haven-Hartford, and Milwaukee, in that order, as the most attractive; that CBS chose to enter the latter market and buy WOKY rather than to operate in Milwaukee on the third available channel; that WCAN's profitable operation in 1954, even with lower rates and competition from WOKY, was 'immediately converted to a losing' one, although in 1955 WOKY was out of business; and that this reported loss of about $130,000 under CBS operation in 1955 contrasted sharply with the 66% increase in its profits nationally. Furthermore, reports in the record from CBS itself show that it always had recognized 'a VHF station * * * would be preferable to a UHF * * *.' but that the latter had 'specially good short-term prospects' (emphasis supplied) in Milwaukee because it had 'the characteristic of being at present' (1954) a 'single station' market. CBS further recognized that since its programing was 'already working to build up UHF population * * * (through WCAN) (t)here would be no short-term loss to the network in continuing to give the support of CBS programing to the buildup of a UHF population * * * at least until more VHF stations come in.' (Emphasis supplied.)
9
The record indicates that Poller had built up a profitable UHF operation, which was recognized as 'the most successful' in the United States. Even CBS officials pointed to it as an example of how 'a vigorously and aggressively managed new UHF station in that community can do well.' In the short period of a year its public acceptance in Milwaukee was so great that 90% of the 260,000 TV sets in the area had been modified, at an expense of some $20 to each owner, so as to be able to receive UHF signals. While CBS had refused to enlarge the six-month cancellation clause, at no time prior to the alleged conspiracy did it indicate an intention to cancel the WCAN affiliation.6 It was, Poller claims, only pursuant to the conspiracy that CBS came into the Milwaukee market and eliminated both WCAN and WOKY. Since that time the total number of commercial UHF stations in the United States has steadily declined from 121 at the end of 1953 to 94 by midyear 1956. At the close of 1957 the number was only 88. In 1958 CBS itself abandoned a UHF station in Hartford, and in 1959 the very station in controversy here was likewise abandoned, leaving Milwaukee with no commercial UHF service. Instead, CBS has switched to VHF, affiliating with a Storer Broadcasting Company station which was authorized there the same year. It will be remembered that Mr. Storer is the same prospect who, Poller claims, indicated he would pay $2,000,000 for WCAN when the multiple rule was adopted but who cooled after a CBS warning. All of this may not be sufficient to warrant the finding that Poller contends for on this charge, but it does indicate more than fantasy, particularly in the light of the testimony of CBS Vice President Salant in his deposition that 'it would be the kiss of death to UHF if either NBC or CBS abandoned a UHF station.'
10
It may be that upon all of the evidence a jury would be with the respondents. But we cannot say on this record that 'it is quite clear what the truth is.' Certainly there is no conclusive evidence supporting the respondents' theory. We look at the record on summary judgment in the light most favorable to Poller, the party opposing the motion, and conclude here that it should not have been granted. We believe that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.7 It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of 'even handed justice.'
IV.
11
Other contentions of respondents are subject to ready disposition. They say that no restraint of trade resulted from CBS' termination of its affiliation with WCAN for this enabled it to support WOKY, the other UHF station in the Milwaukee area, which based upon Poller's own allegations was doomed without an affiliation. To the extent that this argument suggests that there is no violation of the antitrust laws because the public will still receive the same service, it has been foreclosed by this Court's decision in Klor's, Inc., v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). And if it is meant to say that there was no restraint because CBS in canceling its affiliation with WCAN was merely doing what it had a right to do and the resulting demise of WCAN followed from normal market conditions, it erroneously assumes that CBS had an absolute right despite violations of the antitrust laws to exercise its contractual privilege. See Part III, supra. A further answer to the respondents' contention in this regard is that Poller has an additional claim that part of the conspiracy was the destruction of UHF broadcasting entirely. The sole answer of CBS to that is 'there is not a shred of evidence' to support such a charge. However, there has been no trial as yet, and the issue remains a factual one disputed under the pleadings and still undetermined.
12
CBS contends that the monopolization charges are frivolous. We find the record unclear on these claims. In view of our remand for a trial on the merits, we forego any comment thereon. The complaint does not allege the relevant market involved. In the trial court it was argued that UHF broadcasting in Milwaukee was the market, but on the record here we are unable to determine that issue. It may well be that on a trial appropriate allegations and proof can be adduced showing violations of § 2. See generally International Boxing Club v. United States, 358 U.S. 242, 249—252, 79 S.Ct. 245, 249—251, 3 L.Ed.2d 270 (1959); United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 648—654, 77 S.Ct. 872, 906—909, 1 L.Ed.2d 1057 (1957) (dissenting opinion). We believe it to be good judicial administration to withhold decision on these issues.
13
Reversed and remanded.
14
Mr. Justice HARLAN, with whom Mr. Justice FRANKFURTER, Mr. Justice WHITTAKER and Mr. Justice STEWART join, dissenting.
15
As I see it, this is one of those cases, not unfamiliar in treble-damage litigation, where injury resulting from normal business hazards is sought to be made redressable by casting the affair in antitrust terms. I think that the antitrust laws do not fit this case, and that the courts below were quite correct in holding that the respondents were entitled to judgment as a matter of law.
16
The litigation arises out of CBS' cancellation of an affiliation arrangement with WCAN, a UHF television broadcasting station in Milwaukee, owned by Midwest Broadcasting Company of whose property Poller is assignee. CBS maintains that such cancellation was but the legitimate exercise of a contractual right. Poller says that it was part of a conspiracy to restrain and monopolize trade in the television broadcasting business, violative of §§ 1 and 2 of the Sherman Act. Suing under § 4 of the Clayton Act,1 Poller seeks to recover as damages the trebled fair value of the WCAN station and equipment, whose sale to CBS at a distress price he claims was forced upon him in consequence of CBS' cancellation of the WCAN affiliation contract.
17
Poller asserts that CBS, joined by others as conspirators, wanted to put him out of business as the first step in a grand design to destroy UHF broadcasting in Milwaukee, if not indeed throughout the United States. It is said that CBS looked with disfavor upon the growth of UHF broadcasting, being itself already heavily committed to VHF. As subsidiary steps towards the effectuation of this plan, it is charged that CBS chilled prospective purchasers of WCAN; acquired the only then competing UHF station in Milwaukee, WOKY; and later closed that station down.2 CBS' co-conspirators are said to have been CBS-Television, an unincorporated division of CBS; certain officers of CBS; Bartell, the then owner of WOKY; and Holt, a management consultant, who at CBS' behest obtained from Bartell an option to purchase WOKY.
18
I assume that Poller would be entitled to proceed to trial if the record before the District Court had left open a genuine question of fact as to whether the alleged conspiracy had as its object the elimination of all UHF stations in the Milwaukee area, or even if it appeared that petitioner might prove that the respondents entered upon this course in order to reduce the number of UHF stations in Milwaukee from two to one, which was to be owned outright by CBS.3 But, for reasons given below, I think that the depositions and affidavits which were before the District Court disclosed to a practical certainty that such proof could not be made.
19
What did remain open to proof was an alleged arrangement among CBS, its television division, and its officers and agents whereby CBS canceled an affiliation with one UHF station and purchased the facilities of a competing station. Even if somewhere among those sought to be drawn into petitioner's net there can be found two independent actors whose meeting of minds would satisfy the usual conspiracy requirement of 'plurality of parties,'4 their agreement to carry out that design would not, in my view, of itself offend anything proscribed by §§ 1 or 2 of the Sherman Act.
I.
20
In passing on the motion for summary judgment, the District Court had before it more than the four affidavits of interested parties to which the Court's opinion seems especially to refer (ante, 368 U.S., pp. 468, 473, 82 S.Ct., pp. 488, 491). In the record was the testimony of four key witnesses taken by pretrial depositions. Petitioner's counsel had examined Frank Stanton, President of CBS; Richard Salant, a Vice-President of CBS; and Thad Holt, who acted for CBS in procuring the option on the Bartell station.5 Petitioner's testimony was also in the record in the form of a deposition taken by respondents' counsel, and two affidavits submitted in opposition to the motion for summary judgment. In addition, the record contained the respondents' answers to written interrogatories put by the petitioner. It is in light of this far from meager pretrial discovery that the appropriateness of summary judgment must be evaluated.
21
Federal Rule of Civil Procedure 56(c) authorizes a District Court to enter summary judgment
22
'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'
23
In so providing, the draftsmen of the Rule of course did not intend to cut off a litigant's right to a trial before the appropriate fact-finder if triable issues remained unresolved after the pleadings were closed and pretrial discovery had. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967; Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971. On the other hand, it is equally clear that their purpose was to obviate trials which would serve no useful purpose. In administering the Rule, the availability of pretrial discovery, as well as matter actually discovered, is a factor to be considered in determining whether a 'genuine issue as to any material fact' is open. E.g., Schneider v. McKesson & Robbins, Inc., 2 Cir., 254 F.2d 827, 831. Further, the Rule does not indicate that it is to be used any more 'sparingly' in antitrust litigation (ante, 368 U.S., p. 473, 82 S.Ct., p. 491) than in other kinds of litigation, or that its employment in antitrust cases is subject to more stringent criteria than in others. On the contrary, without reflecting in any way upon the good faith of this particular lawsuit, having regard for the special temptations that the statutory private antitrust remedy affords for the institution of vexatious litigation, and the inordinate amount of time that such cases sometimes demand of the trial courts, there is good reason for giving the summary judgment rule its full legitimate sweep in this field.
24
In this case petitioner, the party opposing the motion, had complete access by means of pretrial discovery to all the evidence he could marshal at a trial on the merits.6 Neither his cross-examination of hostile witnesses nor his own direct testimony by way of deposition and affidavit produced any evidence which would indicate that the respondents sought to accomplish anything more than to purchase for CBS a UHF station in Milwaukee. As the Court's opinion seems to recognize, such a purchase (accompanied by a cancellation of petitioner's station affiliation) would be unlawful only if 'conceived in a purpose to unreasonably restrain trade, control a market, or monopolize.' (Ante, 368 U.S., p. 469, 82 S.Ct., p. 489.) (Emphasis added.) In other words, unless a purpose to cancel petitioner's affiliation and purchase the Bartell station would, by itself, be unlawful, petitioner could prevail in this suit only if he proved that the respondents intended to stifle competition in, or monopolize, television broadcasting, either by closing down his station or, more broadly, by destroying the UHF business in whole or in part.7
25
This crucial issue, therefore, turns on proof of the respondents' motives. Had petitioner proceeded to trial and introduced no more evidence of motive than was revealed by the pretrial depositions and affidavits, the case, in my opinion, could not well have been permitted to go to the jury. There being no extrinsic evidence of an unlawful purpose, and CBS' executives having unequivocally denied any purpose to eliminate petitioner as a competitor, the jury would be left with no affirmative evidence of any intent to restrain trade. The possibility that the jury might disbelieve the respondents' assertions of innocence is not enough to forestall the entry of summary judgment in their favor. Dyer v. MacDougall, 201 F.2d 265.
26
Despite the ample opportunity afforded him by the availability of pretrial discovery procedures, petitioner, as will be shown, was able to produce no evidence to support his charges that a conspiracy, narrow or far-reaching, had been hatched. He should not be permitted to proceed to trial just on the hope that in the more formal atmosphere of the courtroom witnesses will revise their testimony or that a clever trial tactic will produce helpful evidence. Courts do not exist to afford opportunities for such litigating gambles. See Radio City Music Hall Corp. v. United States, 2 Cir., 135 F.2d 715; Schneider v. McKesson & Robbins, Inc., supra; cf. Orvis v. Brickman, 90 U.S.App.D.C. 266, 270, 196 F.2d 762, 765—766; Lavine v. Shapiro, 7 Cir., 257 F.2d 14, 20—21.
II.
27
I find nothing in this record to support a claim that CBS, in proceeding as it did, was actuated by a desire to restrain or monopolize trade.
28
It appears from questions asked of Stanton and Salant, two CBS officers, that petitioner sought to imply an unlawful motive to destroy competition from CBS' failure to negotiate with him in the first instance for the purchase of WCAN. Were it shown that respondents refused to consider purchasing petitioner's instead of Bartell's station, although the former was available on satisfactory terms, such a showing might be some evidence of an intent to eliminate petitioner as a competitor of the other station bought by CBS. But the record shows that respondents throughout insisted that their refusal to deal with petitioner was the result of information that he had placed an exorbitant price on his station. That insistence, which Poller did not controvert or himself impugn, is confirmed by his own computation of damages in this case, as well as by his deposition testimony which reveals that he valued the WCAN property at $2,000,000 and demanded that price of all interested purchasers. CBS bought the Bartell station, although to be sure it had substantially inferior facilities, for $335,000.
29
Nor is there any evidence in the record to indicate that the respondents anticipated petitioner's offer to sell his facilities to CBS. It is clear from the affidavits and depositions, and is, in fact, conceded in petitioner's brief before this Court, that it was petitioner who initiated the negotiations and 'importuned CBS to take his equipment off his hands.' Petitioner contends that the respondents knew he would have no use for the recently enlarged plant once his CBS affiliation was canceled, so that his offer of sale was a necessary consequence of the disaffiliation. But this proves only that petitioner's injury may as readily have been the result of CBS' lawful program of expansion as of an invidious scheme to restrain competition. It buttresses the conclusion reached by the Court of Appeals (109 U.S.App.D.C. 170, 173, 176, 284 F.2d 599, 602, 605) that the diminution in the value of petitioner's property was attributable to petitioner's imprudent investment8 rather than to any antitrust conspiracy by the respondents in addition, petitioner's surmise that the respondents must have known that the cancellation of Poller's affiliation would result in his offering his equipment to CBS is hardly consistent with the fact, sworn to by Salant and never traversed, that CBS had its engineering department draw up complete plans as to how the Bartell facilities could be expanded to make them suitable for CBS' intended use.
30
Finally, it is entirely clear from the record that petitioner was unable to prove that the respondents' motive was to eliminate his station. It is undisputed that at the time Holt obtained the option on the Bartell station both the American Broadcasting and DuMont networks had no primary affiliates in the Milwaukee market. There is nothing to indicate that respondents should have anticipated at the birth of their alleged conspiracy that such affiliations would be unavailable to petitioner if the CBS tie were broken. Moreover, it is patent from the terms of the contract under which CBS purchased petitioner's equipment that petitioner represented to the respondents that he would continue broadcasting operations as an independent from the studio formerly occupied by Bartell.9 It was only after this representation was made, albeit, as petitioner now claims, with only 'about a 5 per cent hope' that he would be able to continue, that the exchange of facilities was consummated. The transaction was in all ways consistent with the parties' written intention to maintain two operating UHF stations in Milwaukee. For it was surely much more likely that petitioner could survive as an independent by using the smaller Bartell plant than by remaining in his enlarged studio, which had absorbed a large amount of capital that could not, at least immediately, be put to fruitful use.
31
In sum, the District Court had before it on this motion for summary judgment a record on which it was apparent that petitioner could prove only that CBS had undertaken to cancel its affiliation with petitioner's station and, with Holt's assistance, to purchase a competing UHF station. Only if such a 'conspiracy' is prohibited by § 1 or § 2 of the Sherman Act should the petitioner have been permitted to proceed to trial.
III.
32
Respondents freely admit that the purchase of the Bartell station and the cancellation of petitioner's affiliation were parts of one course of action. They maintain, however, that their intention was to purchase a UHF station in Milwaukee as the first step in an incipient program of expansion into the UHF market, made possible by the Federal Communications Commission's then recently adopted '5-and-2' amendment to its multiple-ownership rule. By reason of this amendment, a single licensee was permitted to own two UHF stations in addition to the maximum five VHF stations theretofore allowed. I would hold that an arrangement to attain this objective did not, of itself, violate § 1 of the Sherman Act.
33
It must be obvious that the cancellation of an affiliation agreement by one network, not acting in concert with any other, does not alone give rise to a cause of action under the antitrust laws. Federal Broadcasting System, Inc., v. American Broadcasting Co., 3 Cir., 167 F.2d 349. A network is surely free to cut its ties to one station and affiliate with another in the same market. Such an act is analogous to a manufacturer's transfer of an exclusive distributorship from one dealer in the market to another. This freedom to choose with whom one deals is preserved under the antitrust laws not only because it is a unilateral decision, but because it does not amount to an unreasonable restraint of trade in any meaningful sense of the term, cf. Packard Motor Car Co. v. Webster Motor Car Co., 100 U.S.App.D.C. 161, 243 F.2d 418; Fargo Glass & Paint Co. v. Globe American Corp., 7 Cir., 201 F.2d 534.
34
To overcome these apparent barriers to any holding that § 1 of the Sherman Act was here violated, petitioner suggests two theories under which respondents' conduct might constitute a forbidden restraint of trade: (1) That by reason of the 'leverage of its network power' CBS was able to restrain trade among the independently owned UHF stations in the Milwaukee area; and (2) that CBS' purchase of a television station amounted, per se, to an unreasonable restraint of trade. How either of these alleged restraints, assuming they are unlawful, caused petitioner's alleged loss is left a mystery. Regardless of any question of causation, however, petitioner can prevail on neither theory.
35
To the extent that the 'leverage' complained of charges CBS with monopolizing a market, petitioner's claim falls under § 2, a matter to which I will revert in a moment. Infra, 368 U.S., pp. 485—486, 82 S.Ct., pp. 497—498. Apart from monopoly power, the respondents could have violated the antitrust laws only by conspiring in some manner to use CBS' 'leverage' to restrain trade. Clearly, the disaffiliation alone was not an unlawful use of the network's power. Having built up the value of his station substantially because of its CBS affiliation, petitioner is hardly in a position to claim that by depriving him, in the exercise of a contract right, of the benefit of such an affiliation CBS was unreasonably exercising its superior power to restrain trade. And there is no indication in the record that this 'leverage' in any way affected the purchase price of petitioner's equipment, even were it to be assumed that the respondents foresaw that petitioner would be willing to sell. The charges here are unlike those in United States v. Radio Corporation of America, 158 F.Supp. 333, reversed, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354, in which the Government sought to enjoin, as violating § 1, a network's attempt to coerce an independent owner into selling his station to the network under threat of canceling the network's affiliation with other stations under the same ownership. In this case there is no claim made that CBS conditioned the continuation of some network service upon petitioner's consent to sell his equipment, or on his willingness to reduce his price.
36
Nor can I agree that the contract whereby CBS became a station owner in the Milwaukee market was, in and of itself, a contract in restraint of trade. Petitioner is unable to point to any convincing differences between the vertical integration that is accomplished when a network purchases a station and that which results from an affiliation contract. Moreover, the very contention now being made here by the petitioner has repeatedly been presented to the Federal Communications Commission, and that agency has consistently adhered to the view that network ownership of stations, subject, of course, to the maximum-ownership limitation, is not contrary to the public interest. E.g., ABC Paramount Merger, 8 Pike and Fischer Radio Reg. 541; St. Louis Telecast, Inc., 12 Pike and Fischer Radio Reg. 1289, 1372; National Broadcasting Co., 20 Pike and Fischer Radio Reg. 411, 419.
37
This Court has also been reluctant to hold that vertical expansion alone can amount to an unreasonable restraint prohibited by § 1 of the Sherman Act. United States v. Paramount Pictures, Inc., 334 U.S. 131, 173—174, 68 S.Ct. 915, 936—937, 92 L.Ed. 1260; United States v. Columbia Steel Co., 334 U.S. 495, 525, 68 S.Ct. 1107, 1123, 92 L.Ed. 1533. Without of course suggesting that the Federal Communications Commission has authority to alleviate an applicant for a station license from the requirements of the antitrust laws, United States v. Radio Corporation of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354, in light of the uniform course of decisions by the agency familiar with the field, and in the absence of any indication that this particular purchase in fact restrained trade, I think it is clear that petitioner's injury, even if it be assumed partially attributable to CBS' purchase, may not be made the basis of a treble-damage action.
38
Petitioner's § 2 claim is if anything even more insubstantial. He contends that respondents conspired to monopolize the UHF market in Milwaukee, and perhaps across the country, and that they succeeded in their attempt, at least in Milwaukee. But it is undisputed that the television sets being produced and sold in the Milwaukee area at the time of the alleged conspiracy were all equipped to receive VHF broadcasts and could be adapted to receive UHF signals as well. .thus, any UHF station was necessarily in competition with all VHF stations in the market with respect to both the viewing and the advertising public. Indeed, as the record uncontrovertedly shows, the CBS station ultimately succumbed because the VHF competition was too strong. Since CBS was patently not a monopolist in the Milwaukee market (which included both UHF and VHF), and since there was no allegation that it approached monopoly power in any other market in which petitioner was a competitor, the entry of summary judgment in favor of the respondents on this claim too was eminently correct.
39
I have gone into this matter at some length because in my opinion the Court's encouragement of this sort of antitrust 'enforcement' does disservice to the healthy observance of these laws. I would affirm.
1
Section 1 of the Sherman Act provides that: 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. * * *' 26 Stat. 209, as amended, 15 U.S.C. § 1, 15 U.S.C.A. § 1.
Section 2 of the Sherman Act provides that: '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 * * *.' 26 Stat. 209, as amended, 15 U.S.C. § 2, 15 U.S.C.A. § 2.
2
The terms ultra high frequency (UHF) and very high frequency (VHF) refer to the wave lengths of the electrical impulses which are projected by broadcasting stations to carry programs to receiving sets. Prior to 1952 only the VHF portion of the spectrum was authorized. Generally TV receivers are manufactured only to receive VHF signals and must be modified by an owner to receive UHF.
3
The conspirators were alleged to be Columbia Broadcasting System, Inc.; CBS—TV; J. L. Van. Volkenburg, President of CBS—TV; H. K. Akerberg, Vice President of CBS—TV; Bartell Broadcasters, Inc., owners of WOKY; and Thad Holt, a management consultant.
4
We do not pass upon the point urged by Pollar that under the CBS corporate arrangement of divisions, with separate officers and autonomy in each, the divisions came within the rule as to corporate subsidiaries.
5
11 Pike and Fischer Radio Reg. 913, 914.
6
Indeed, such action would be unreasonable in light of the success of Midwest's initial operation and its highly favorable prospects with the expanded facilities and new equipment.
7
Compare Kennedy v. Silas Mason Co., 334 U.S. 249, 256—257, 68 S.Ct. 1031, 1034, 92 L.Ed. 1347 (1948); Arenas v. United States, 322 U.S. 419, 434, 64 S.Ct. 1090, 1096, 88 L.Ed. 1363 (1944).
1
Under 15 U.S.C. § 15, 15 U.S.C.A. § 15 'Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws is given a private right of action.'
2
The last of these allegations was not included in the complaint since the station acquired by CBS did not cease operations until after this suit was brought. It was alleged, however, in petitioner's supplemental affidavit in response to the motion for summary judgment.
3
If such issues of fact were open and petitioner could prove at the trial that respondents' motives were unlawful, I think it would still be incumbent upon him to prove that the disaffiliation of WCAN was part of the illegal scheme. There is evidence in the record, not contradicted, tending to show that CBS would have canceled that affiliation without regard to its purchase of the Bartell station. If so, much, if not all, of petitioner's alleged loss would have been incurred because of this unilateral act, and not 'by reason of anything forbidden in the antitrust laws.'
4
While I do not reach respondents' contention that no consensual arrangement of any kind was shown, I must say that the Court has stretched very fair in suggesting that Holt may have been a 'conspirator.' The record shows, beyond any real possibility of contradiction, that Holt was simply engaged by CBS to act for it, as undisclosed principal, in procuring from Bartell an option to purchase WOKY. So far as Bartell is concerned, it stands uncontroverted in the record that he never knew of CBS' interest in Holt's option until it was exercised by CBS.
5
The record shows that the undisclosed employment of Holt was due to CBS' desire to keep its competitors, particularly the National Broadcasting Company, from knowledge of its intentions respecting WOKY. This is, of course, a perfectly normal business phenomenon.
6
There is no suggestion that petitioner was not afforded opportunity to examine any witness he wanted, either before or after respondents made their motion for summary judgment.
7
The assertion that respondents sought to destroy 'the UHF industry * * * because of the enormous economic investment they had in VHF,' upon which the Court relies (ante, 368 U.S., p. 469, 82 S.Ct., p. 489), was not made in any of the papers filed with the District Court. It was first raised during oral argument on the motion for summary judgment. There is nothing in the record to support this charge except the hindsight inference arising from the fact that after four years of operating the UHF station in Milwaukee, CBS discontinued it, claiming that the VHF competition was too powerful.
The Court's opinion takes out of context certain statements in a CBS report and infers from them that CBS was intending to make only a short-term venture out of its UHF purchase. But a full reading of the report in question, which was appended to petitioners' affidavit in opposition to the motion for summary judgment, reveals that CBS rejected the suggestion that it purchase a UHF station in a market that was primarily VHF, for the very reason that it would have only short-term advantages. Moreover, the Court's construction of the passage on which it relies hardly reflects its real meaning. The central question on which the report focused was 'the degree of short-term cost and inconvenience that is to be undergone in order to obtain the eventual gain' in the purchase of a UHF station. In this context, the report noted that CBS television programs, broadcast by a CBS affiliate in the area (i.e., WCAN), had already built up a UHF viewing market, so that the losses that might be expected at the outset of any such venture would be minimized. The inference is that it would be wise for CBS to capitalize on this headstart before it was cut into by more VHF stations, not that CBS should purchase the station and abandon it as soon as other VHF stations entered the market.
8
The record shows that Poller from the beginning had unsuccessfully tried to persuade CBS to enlarge the term of his affiliation contract cancellation clause from six months to two years, and that, with eyes thus open, he nonetheless proceeded with his substantial equipment investment.
9
One of the introductory clauses of the contract provided:
'WHEREAS, Midwest (petitioner) has represented to CBS that Midwest intends to continue the operation of WCAN and all business incidental thereto, and for that purpose CBS proposes to make the sale and transfers hereinafter set forth; * * *'
I find no persuasive basis in the record for petitioner's assertion that this was designed as a self-serving declaration to cloak CBS' alleged antitrust malefactions. By that same contract CBS sold to Poller the WOKY equipment, in part consideration for the purchase of his equipment, the thought quite evidently being that such equipment would suffice for his continued operations, while the superior WCAN equipment would relieve CBS from the necessity of completely re-equipping WOKY.
| 78
|
369 U.S. 17
82 S.Ct. 541
7 L.Ed.2d 503
RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNIONS NOS. 128 AND 633, Petitioners,
v.LION DRY GOODS, INC., et. al.
No. 73.
Argued Jan. 17, 1962.
Decided Feb. 26, 1962.
S.G. Lippman, Washington, D.C., for petitioners.
Merritt W. Green, Toledo, Ohio, for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Section 301(a) of the Labor Management Relations Act,1 provides that "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizen of the parties." The questions presented in this case are: (1) Does the scope of "contracts" within § 301(a) include the agreement at bar, claimed to be not a "collective bargaining contract" but a "strike settlement agreement"? (2) If otherwise includible, is the "strike settlement agreement" cognizable under § 301(a), although the petitioners, the labor-organization parties to the agreement, acknowledged that they were not entitled to recognition as exclusive representatives of the employees of the respondents?
2
The opinions below appear to rest upon alternative holdings, answering in the negative each of these questions. The District Court's conclusion that it lacked jurisdiction over the subject matter, 179 F.Supp. 564, was affirmed in a brief per curiam by the Court of Appeals, saying: "The contract here involved is not a collective bargaining agreement between an employer and a labor organization representing its employees. We think that the trial court was correct in reaching the conclusion that collective bargaining contracts between a union and an employer are the only contracts intended to be actionable in a United States District Court under the provisions of section 301(a)." 286 F.2d 235. We granted certiorari because of the importance of the questions to the enforcement of the national labor policy as expressed in § 301(a). 366 U.S. 917, 81 S.Ct. 1094, 6 L.Ed.2d 240. We hold that the lower courts erred and remand the cause for trial and further proceedings consistent with this opinion.2
3
The petitioners, local unions of the Retail Clerks International Association, brought this action on the sole jurisdictional basis of § 301(a) and (b), seeking to compel respondents' compliance with two allegedly binding arbitration awards. Respondents are two department stores in Toledo, Ohio, covered by the Labor Management Relations Act. For some years prior to 1957, petitioners had been the collective bargaining representatives of respondents' employees and had been parties to collective bargaining agreements with respondents. In November 1957, negotiations for renewal contracts ended in impasse. A strike ensued against one of the respondents, Lasalle's, and continued until December 24, 1958; the dispute with the other respondent, Lion Dry Goods, continued during the whole of those 13 months although no strike occurred. On December 24, 1958, the parties ended their dispute with the aid of the Toledo Labor-Management-Citizens' Committee (hereinafter, L-M-C), a local mediation and arbitration body.3 Negotiations by means of L-M-C mediation had produced a "Statement of Understanding"4 satisfactory to all parties.
4
A few days before December 24, 1958, the L-M-C proposed a plan for settling the dispute. Discussions ensued between the Committee and the respondents, and between the Committee and the petitioners. At no time were direct negotiations carried on between petitioners and the respondents. Each side made known to the L-M-C discussed these conditions with the other side. In this manner a basis for settlement was fashioned which was embodied in the Statement referred to in the text.
5
The Statement contained such key points of settlement as the unions' acknowledgement that they were not then entitled to recognition as exclusive representatives, and would not seek such recognition unless and until certified as so entitled in single store unit elections conducted by the National Labor Relations Board, and Lasalle's agreement to reinstate striking employees without discrimination. Both stores also agreed to continue in effect detailed wage and hour schedules and provisions as to working conditions and other benefits, incorporated as exhibits to the Statement. All terms of employment had been in force prior to December 24, 1958, except an agreement by the stores to provide and pay fully for specified insurance coverage. The stores wrote the L-M-C delivering the Statement, calling it "the basis on which the heretofore existing dispute between [the Locals] and our compan[ies] is to be fully and finally resolved," and specifying that "The conditions to be performed and met by us are, of course, subject to and conditioned upon the receipt by your organization of guarantees from the respective labor organizations to make the principles enumerated [in the Statement] completely effective." A few days later the Locals wrote the L-M-C that "we herewith agree to the conditions and guarantees of the Statement of Understanding." The conditions to be performed by each side were performed and the dispute was terminated. In a few months, however, new grievances arose, including the two that generated this case. First. The unions claimed under the Statement the right of access to the employees' cafeteria in order to communicate with employees during their non-working time. The stores claimed that Statement ¶ 6 gave no right of access to the employees' cafeterias, for those are not "areas of the store which are open to customers."5 Second. Two Lasalle's employees, salesladies in the men's furnishings department, had been fully reinstated except that the saleslady formerly assigned to sell men's shirts was assigned to sell men's sweaters, and the other saleslady, who had been selling sweaters, now was assigned to sell shirts. The Locals submitted these matters to the L-M-C under the procedure of Statement ¶ 7; the stores and the Locals participated fully in the ensuing arbitration proceedings; and the award went to the Locals on both grievances. The stores' refusal to accede to those awards prompted this suit.
6
The District Court viewed as crucial the question whether the Statement given by the stores to the L-M-C and then concurred in by the Locals, constituted "such a contract as is contemplated by Section 301(a)." 179 F.Supp., at 567. Although the opinion is somewhat ambiguous, we read it as holding that there was a contract between the Locals and the stores but that only certain kinds of contracts are within the purview of § 301(a) and this was not one of them.6 We interpret the District Court as holding that to be within § 301(a), contracts must be "collective bargaining contracts, or agreements arrived at through collective bargaining," ibid.' and further, must be with a union that is the recognized majority representative of the employees. The court found that the Statement of Understanding met neither test.7 The Court of Appeals' brief affirmance, supra, fails to make clear whether it agreed with both of those limitations on § 301(a), or with only one and if so which one.
7
It is argued that Congress limited § 301(a) jurisdiction to contracts that are "collective bargaining contracts," meaning, so runs the argument, only agreements concerning wages, hours, and conditions of employment concluded in direct negotiations between employers and unions entitled to recognition as exclusive representatives of employees.
8
The words of § 301(a) require no such narrow construction as is suggested; rather, they negate it. First. The Section says "contracts" though Congress knew well the phrase "collective bargaining contracts," see, e.g., § 8(d), § 9(a), § 201(c), § 203(d), § 204(a)(2), § 211(a), 29 U.S.C.A. §§ 158(d), 159(a), 171(c), 173(d), 174(a)(2), 181(a). Had Congress contemplated a restrictive differentiation, we may assume that it would not have eschewed "collective bargaining contracts" unwittingly. Moreover, Congress provided in § 211(a): "For the guidance and information of interested representatives of employers, employees, and the general public, the Bureau of Labor Statistics * * shall maintain a file of copies of all available collective bargaining agreements and other available agreements and actions thereunder settling or adjusting labor disputes."8 Whatever the proper construction of that Section, insofar as it reflects upon § 301(a) at all, it supports the inference that "contracts" does include more than "collective bargaining agreements," at lest as respondents would define them. Second. If "contracts, the subsequent words "or between any such labor organizations" are superfluous, for if there is a collective bargaining agreement between unions it follows that as to that agreement, one union is the employer and the other represents employees. See Office Employes Intern. Union, etc., v. National Labor Relations Board, 353 U.S. 313, 77 S.Ct. 799, 1 L.Ed.2d 846. Congress was not indulging in surplusage: A federal forum was provided for actions on other labor contracts besides collective bargaining contracts. See, e.g., United Textile Workers, etc., v. Textile Workers Union, 7 Cir., 258 F.2d 743 (no-raiding agreement). But, it is urged, though Congress meant that labor organizations could sue one another in federal courts on other contracts between themselves, suits between employers and unions were still limited to actions on collective bargaining contracts: The provision for suits between labor organizations was inserted in Conference.9 Differing House and Senate bills were reconciled in Conference. The House bill spoke of suits involving a violation of "an agreement between an employer and a labor organization or other representative of employees * * *." The Senate bill read "contracts concluded as the result of collective bargaining between an employer and a labor organization * * *."10 It is urged that the Conference compromise upon the word "contracts" reflects a desire to use one word to cover both suits between employers and unions, and suits between unions. But it seems obvious that had Congress intended any limiting differentiation, this would have been accomplished by retaining the Senate bill's phrasing for agreements between employers and unions and then providing specifically for the application of the statute to "contracts between any such labor organizations." Third. A 1959 enactment, § 8(f),11 explicitly contemplates contracts that would not fit respondents' concept of "collective bargaining agreements." It authorizes contracting with unions that represent persons not yet even hired by the employer. Such a contract might cover only hiring procedures and not wages, hours, and conditions of employment. Nothing supports the improbable congressional intent that the federal courts be closed to such contracts.
9
We find, then, from a reading of the words of § 301(a), both in isolation and in connection with the statute as a whole, no basis for denying jurisdiction of the action based upon the alleged violation of the "strike settlement agreement."
10
Furthermore, the statute's purpose would be defeated by excluding such contracts from "contracts" cognizable under § 301(a). See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519. If this kind of strike settlement were not enforceable under § 301(a), responsible and stable labor relations would suffer, and the attainment of the labor policy objective of minimizing disruption of interstate commerce would be made more difficult. It is no answer that in a particular case the agreement might be enforceable in state courts: a main goal of § 301 was precisely to end "checkerboard jurisdiction," Seymour v. Schneckloth, 368 U.S. 351, at 358, 82 S.Ct. 424, at 428, 7 L.Ed.2d 346. See Charles Dowd Box Co. v. Courtney, supra.
11
Lastly, legislative history refutes the argument that Congress intended to omit agreements of the kind in suit from "contracts" falling within the purview of § 301(a).12
12
We need not decide whether or not this strike settlement agreement is a "collective bargaining agreement" to hold, as we do, that it is a "contract" for purposes of § 301(a). "Contract in labor law is a term the implications of which must be determined from the connection in which it appears." J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 334, 64 S.Ct. 576, 579, 88 L.Ed. 762. It is enough that this is clearly an agreement between employers and labor organizations significant to the maintenance of labor peace between them. IT came into being as a means satisfactory to both sides for terminating a protracted strike and labor dispute. Its terms affect the working conditions of the employees of both respondents. It effected the end of picketing and resort by the labor organizations to other economic weapons, and restored strikers to their jobs. It resolved a controversy arising out of, and importantly and directly affecting, the employment relationship. Plainly it falls within § 301(a). "[F]ederal courts should enforce these agreements on behalf of or against labor organizations and * * * industrial peace can be best obtained only in that way." Textile Workers Union, etc. v. Lincoln Mills, etc., 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972.
13
Only a few words are necessary to dispose of respondents' second contention, that even if this agreement were otherwise within § 301(a), petitioners' disclaimer of entitlement of recognition as exclusive representatives puts them out of court. This issue does not touch upon whether minority unions may demand that employers enter into particular kinds of contracts or the circumstances under which employers may accord recognition to unions as exclusive bargaining agents. The question is only whether "Labor organization representing employees" in § 301(a) has a meaning different from "labor organization which represents employees" in § 301(b). In United States v. Ryan, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335, we rejected the argument that § 301(b) was limited to majority representatives. Neither the words, purpose, nor history of the statute suggests any reason for a different construction of the virtually identical words of subsection (a). Nor can "labor organization representing employees" in § 301(a) be read as differing from "any such labor organizations" in that subsection's very next phrase, and plainly, in suits between labor organizations, their right to recognition as exclusive representatives vis-a-vis employers has no relevance whatever.
14
"Members only" contracts have long been recognized. See, e.g., Consolidated Edison Co., etc. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126. Had Congress thought that there was any merit in limiting federal jurisdiction to suits on contracts with exclusive bargaining agents, we might have expected Congress explicitly so to provide, for example, by enacting that § 301(a) should be read with § 9(a). Compare § 8(a)(3), § 8(a)(5), § 8(b)(3), § 8(b)(4), § 8(d). Moreover, § 8(f), the 1959 amendment considered supra, 369 U.S., p. 27, 82 S.Ct., p. 547, contemplates contracting with unions that would not represent a majority. Lastly, if the federal courts' jurisdiction under § 301(a) required a preliminary determination of the representative status of the labor organization involved, potential conflict with the National Labor Relations Board would be increased, cf. La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463; Amazon Cotton Mill Co. v. Textile Workers Union, 4 Cir., 167 F.2d 183, and litigation would be much hindered.
15
We conclude that the petitioners' action for alleged violation of the strike settlement agreement was cognizable by the District Court under § 301(a). The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
16
Judgment of Court of Appeals reversed and cause remanded to District Court.
17
Mr. Justice FRANKFURTER, concurring.
18
I wholly agree with the Court in rejecting the restrictive meaning given by the Court of Appeals to "contracts" in § 301(a) of the Labor Management Relations Act. I have, however, serious doubt whether the "statement of understanding" on the basis of which the strike was settled was in fact a contract, in the sense of a consensual arrangement between the Retail Clerks and Lion Dry Goods, rather than a formulation of the results of the intercession of a public-spirited intermediary on the basis of which each side was prepared to lay down its arms. However, on a matter of construing a particular document, in light of the surrounding circumstances, I do not desire to dissent.
1
61 Stat. 156, 29 U.S.C. § 185(a), 29 U.S.C.A. § 185(a).
2
Respondents claim that the cause is moot since, after the commencement of this action, the petitioners merged with Local 954 of the same International Union to form a new Local 954. Petitioners deny mootness and move to add or substitute Local 954 as a party. The facts of the merger make this case indistinguishable from De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109; see also National Labor Relations Board v. Insurance Agents' International Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454. We therefore hold that the case is not moot, and the petitioners' motion to add Local 954 as a party is granted.
3
Before 1957, the respondents and two other downtown Toledo department stores, through an organization, Retail Associates, Inc., recognized the petitioners as representatives of their employees and executed collective bargaining agreements with the petitioners on a multi-employer basis. When the 1957 impasse developed, the peti-
tioners struck one of those two other stores and it promptly contracted separately with the petitioners. Respondents and the second of the two other stores petitioned the National Labor Relations Board to conduct an election among the employees of the three stores as a single bargaining unit. The petitioners reacted with a demand that each store negotiate separately. Simultaneously, the petitioners called the strike at respondent Lasalle's. The dispute produced considerable litigation. See Local 128, Retail Clerks v. Leedom, 42 LRR Man. 2031; Retail Associates, Inc., 120 N.L.R.B. 388; Retail Clerks Assn. v. Leedom, 43 LRR Man. 2004, 2029.
4
The Lasalle's Statement of Understanding (exhibits omitted) reads as follows:
"1. Employees of Lasalle's, who have been absent due to the strike, will be reinstated without discrimination because of any strike activities and without loss of seniority provided they make application for reinstatement in the form and manner provided for by the employer within fifteen days of receipt of notice from the employer.
"2. All such employees who have complied with the provisions of Paragraph 1 above, will be returned to work not later than February 2, 1959, as scheduled by the Company, in their former position classifications if vacant or in positions comparable in duties and earning opportunities.
"3. It is understood that returning strikers will devote their vest efforts to their work and to serving the customer of Lasalle's, recognizing that stability of employment depends upon the success of the business.
"4. Lasalle's will warrant to the L-M-C that the Company will not reduce rates of pay presently in effect or withdraw or reduce
employee benefit programs currently provided. This assurance includes all improvements offered by the Company through the L-M-C on November 15th, 1957, which are already in effect. No employee will be discriminated against, by reason of Union activities, membership or non-membership. All employees will continue to have job security and no employee will be discharged except for just cause. Wage schedules currently in effect are appended as Exhibit A. Copies of hours and working conditions and other existing benefits, as requested by L-M-C are attached as Exhibit B.
"5. Neither the Company nor the Union will interfere with the employee's right to join a union, as provided and guaranteed by the Labor-Management-Relations Act. Nothing contained herein is to be construed as giving recognition to the union unless at some future time within the discretion of the union, the union is certified as having been chosen by a majority of employees in a single store unit election conducted by the National Labor Relations Board.
"6. The Union agrees that it will not request bargaining rights unless it proves its right to represent the employees as provided in Paragraph 5 above; nor will the employer recognize any union except upon certification by the N.L.R.B.; nor will the Company file a petition for election unless a claim for representation is made upon the employer. Nothing herein shall preclude an employee representative from entering areas of the store which are open to customers; or from communicating with employees, provided such communication is on the employee's non-working time and in no way interferes with the operating of the business.
"7. Any individual employee who may have a grievance involving an interpretation or application of or arising under the terms of this understanding with the L-M-C, and who has presented such grievance to his supervisor and the Personnel Department without reaching a satisfactory solution, may take his case to the chairman of the L-M-C, whose majority decision and order shall be final and binding. The panel shall render its decision and order within fifteen days after the grievance has been submitted to it. The procedure regulating the
hearing of the grievance by the L-M-C panel shall be determined by the panel.
"8. The Union will agree that immediately upon receipt of this statement of understanding by the Toledo Labor-Management-Citizens Committee it will cease all picketing, boycotting or other interference with the business of Lasalle's, or R.H. Macy & Co., Inc. wherever located. The Union, the strikers, and the Company shall withdraw forthwith all petitions, unfair labor practice charges and litigation before the National Labor Relations Board and the Courts and further agree not to institute in the future any litigation involving or arising out of the instant dispute. The Union and the Employer shall execute mutually satisfactory releases, releasing and discharging each other, the International Union, the local unions involved, and representatives of the union in their representative of individual capacity, labor papers, and all other labor organizations or their representatives who acted in concert or cooperation in connection with the dispute, from any and all claims, demands, causes of action, of whatever nature of description arising out of the labor dispute, including but not limited to the strikes, picketing, boycotting, and all other activities which may have taken place up to the present date.
"9. This understanding shall become effective in accordance with the letter of transmittal dated December 24, 1958."
The Lion Store's Statement is identical except for the omission of paragraphs 1, 2 and 3.
5
The parties' trial stipulation says, inter alia: "[T]he employee cafeterias in the downtown stores of the defendants * * are located in areas in each of the stores not open to customers; * * *."
6
The District Court relied for its view of the limited meaning of "contracts" under § 301(a), it is clear that the Statement constitutes a contract between the parties. This is so, although they did not negotiate directly but through a mediator, and did not conjoin their signatures on one document. The record makes obvious that neither the parties nor L-M-C contemplated two independent agreement, one by each side with L-M-C only, unenforceable by either side against the other.
The parties stipulated as to the arbitration proceedings that it was "assumed by all parties in attendance to be a meeting of a panel chosen * * * to perform proper functions delegated to such a panel under the provisions of * * * [the] Statements of Understanding * *." They further stipulated that "nothing * * * [herein] is to preclude the Court from finding that the settlement of December 24, 1958, was a collective bargaining agreement." In their answer in the District Court, respondents denied "that there is in existence any contract between the plaintiffs, or either of them, and the defendants, or either of them, or that there is in existence any agreement between the parties, collectively or singly, whereby the [L-M-C] is given any right or authority to arbitrate any grievance which the plaintiff's right claim to have." Petitioners claim and the respondents do not deny that at no time prior to their answer had respondents suggested there was no contract: they complied with the conditions for ending the dispute, they continued following the old wage and hour schedules and other provisions, they participated in the arbitration proceedings and they asked the L-M-C to reconsider their awards on the merits.
Respondents' contention throughout, whether because of the stipulation or otherwise, has been not to negate the existence of any contract at all,but rather to deny that there is a contract of the kind contemplated by § 301(a). The District Court so construed the defense, 179 F.Supp., at 565. The Court of Appeals appears to have agreed; see supra. And no point in their brief in this Court do respondents argue that no contract exists; they agree that the only issue is jurisdictional.
7
The court emphasized that the Statement disclaimed the Locals' right to be recognized as exclusive bargaining agent until so certified by the National Labor Relations Board.
8
61 Stat. 156.29 U.S.C. § 181(a), 29 U.S.C.A. § 181(a).
9
2 N.L.R.B., Legislative History of the Labor Management Relations Act, 1947, pp. 1535, 1543.
10
1, id., at 221, 279.
11
73 Stat. 545, 29 U.S.C. (Supp. II) § 158(f), 29 U.S.C.A. § 158(f).
12
See 1 and 2 N.L.R.B., supra, n. 9, at 94, 151, 221, 279, 299, 336-367, 399-400, 409, 421-424, 436, 475 (see id., at 441), 569-570, 873, 927, 993, 1013, 1014, 1037, 1043, 1044, 1065-1066, 1074, 1076, 1078, 1118, 1123-1124, 1128, 1133, 1145-1146, 1150, 1166, 1208, 1325, 1342-1343, 1446, 1456, 1461, 1483, 1488, 1497, 1524, 1539, 1543, 1557-1558, 1619, 1626, 1654. None of the many references to "collective bargaining contracts" evinces a consideration of the meaning or scope of that phrase.
| 67
|
369 U.S. 31
82 S.Ct. 549
7 L.Ed.2d 512
Samuel BAILEY et al., Appellants,v.Joe T. PATTERSON et al.
No. 643.
Decided Feb. 26, 1962.
Constance Baker Motley, Jack Greenberg, James M. Nabrit III and R. Jess Brown, for appellants.
Dugas Shands and Edward L. Cates, Asst. Attys. Gen. of Mississippi, and Charles Clark, Sp. Asst. Atty. Gen., for appellee Patterson.
Thomas H. Watkins, for appellee City of Jackson, Mississippi, and others.
Junior O'Mara, for appellee Greyhound Corp. and others.
PER CURIAM.
1
Appellants, Negroes living in Jackson, Mississippi, brought this civil rights action, 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3), in the United States District Court for the Southern District of Mississippi, on behalf of themselves and others similarly situated, seeking temporary and permanent injunctions to enforce their constitutional rights to nonsegregated service in interstate and intrastate transportation, alleging that such rights had been denied them under color of state statutes, municipal ordinances, and state custom and usage.* A three-judge District Court was convened, 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, and, Circuit Judge Rives dissenting, abstained from further proceedings pending construction of the challenged laws by the state courts. 199 F.Supp. 595. Plaintiffs have appealed, 28 U.S.C. § 1253, 28 U.S.C.A. § 1253; N.A.A.C.P. v. Bennett, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375. We denied a motion to stay the prosecution of a number of criminal cases pending disposition of this appeal. 368 U.S. 346, 82 S.Ct. 282.
2
Appellants lack standing to enjoin criminal prosecutions under Mississippi's breach-of-peace statutes, since they do not allege that they have been prosecuted or threatened with prosecution under them. They cannot represent a class of whom they are not a part. McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 162—163, 35 S.Ct. 69, 71, 59 L.Ed. 169. But as passengers using the segregated transportation facilities they are aggrieved parties and have standing to enforce their rights to nonsegregated treatment. Mitchell v. United States, 313 U.S. 80. 93, 61 S.Ct. 873, 876, 85 L.Ed. 1201; Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222.
3
We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. Morgan v. Commonwealth of Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317; Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114; Boynton v. Com. Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206. The question is no longer open; it is foreclosed as a litigable issue. Section 2281 does not require a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Bell v. Waterfront Comm., 2 Cir., 279 F.2d 853, 857—858. We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional. Willis v. Walker, D.C., 136 F.Supp. 181; Bush v. Orleans Parish School Board, D.C., 138 F.Supp. 336; Kelley v. Board of Education, D.C., 139 F.Supp. 578. We denied leave to file petitions for mandamus in Bush, 351 U.S. 948, 76 S.Ct. 854, 100 L.Ed. 1472, and from a similar ruling in Booker v. Tennessee Board of Education, 351 U.S. 948, 76 S.Ct. 856, 100 L.Ed. 1472. The reasons for convening an extraordinary court are inapplicable in such cases, for the policy behind the three-judge requirement—that a single judge ought not to be empowered to invalidate a state statute under a federal claim—does not apply. The three-judge requirement is a technical one to be narrowly construed, Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800. The statute comes into play only when an injunction is sought 'upon the ground of the unconstitutionality' of a statute. There is no such ground when the constitutional issue presented is essentially fictitious.
4
This case is therefore not one 'required * * * to be heard and determined by a district court of three judges,' 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and therefore cannot be brought here on direct appeal. However, we have jurisdiction to determine the authority of the court below and 'to make such corrective order as may be appropriate to the enforcement of the limitations which that section imposes,' Gully v. Interstate Natural Gas Co., 292 U.S. 16, 18, 54 S.Ct. 565, 566, 78 L.Ed. 1088; Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 392, 54 S.Ct. 732, 734, 78 L.Ed. 1318; Phillips v. United States, 312 U.S. 246, 254, 61 S.Ct. 480, 484, 85 L.Ed. 800. Accordingly, we vacate the judgment and remand the case to the District Court for expeditious disposition, in light of this opinion, of the appellants' claims of right to unsegregated transportation service.
5
Vacated and remanded.
*
The statutes in question are Miss.Code 1942, Tit. 11, §§ 2351, 2351.5, 2351.7, and Tit. 28, §§ 7784, 7785, 7786, 7786—01, 7787, 7787.5.
| 12
|
369 U.S. 1
82 S.Ct. 585
7 L.Ed.2d 492
Suzanne Thomas RICHARDS, etc., et al., Petitioners,v.UNITED STATES of America et al.
No. 59.
Argued Nov. 15, 1961.
Decided Feb. 26, 1962.
Truman B. Rucker, Tulsa, Okl., for petitioners.
Richard J. Medalie, Washington, D.C., for respondent, the United States.
W. B. Patterson, Dallas, Tex., for respondent, American Airlines, Inc.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question to be decided in this case is what law a Federal District Court should apply in an action brought under the Federal Tort Claims Act1 where an act of negligence occurs in one State and results in an injury and death in another State. The basic provision of the Tort Claims Act states that the Government shall be liable for tortious conduct committed by its employees acting within the scope of their 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.'2 The parties urge that the alternatives in selecting the law to determine liability under this statute are: (1) the internal law of the place where the negligence occurred, or (2) the whole law (including choice-of-law rules) of the place where the negligence occurred, or (3) the internal law of the place where the operative effect of the negligence took place.
2
Although the particular facts of this case are relatively unimportant in deciding the question before us, a brief recitation of them is necessary to set the context for our decision. The petitioners are the personal representatives of passengers killed when an airplane, owned by the respondent American Airlines, crashed in Missouri while en route from Tulsa, Oklahoma, to New York City. Suit was brought by the petitioners against the United States in the Federal District Court for the Northern District of Oklahoma, on the theory that the Government, through the Civil Aviation Agency, had 'negligently failed to enforce the terms of the Civil Aeronautics Act and the regulations thereunder which prohibited the practices then being used by American Airlines, Inc., in the overhaul depot of Tulsa, Oklahoma.'3 The petitioners in each case either had already received a $15,000 settlement from the Airlines, the maximum amount recoverable under the Missouri Wrongful Death Act,4 amount had been tendered that amount. They sought additional amounts from the United States under the Oklahoma Wrongful Death Act5 which contains no limitation on the amount a single person may recover from a tortfeasor. The Government filed a third-party complaint against American Airlines, seeking reimbursement for any amount that the petitioners might recover against the United States.
3
After a pretrial hearing, the District Court ruled that the complaints failed to state claims upon which relief could be granted under the Oklahoma Act since that statute could not be applied extraterritorially 'where an act or omission occurring in Oklahoma results in injury and death in the State of Missouri.'6 Alternatively, the court noted that if Oklahoma law was applicable under the Federal Tort Claims Act, 'then the general law of Oklahoma, including its conflicts of law rule, is applicable thereunder,' thus precluding further recovery since the Oklahoma conflicts rule would refer the court to the law of Missouri, the place where the negligence had its operative effect.7 In dismissing the petitioners' complaints against the United States, the court found it unnecessary to pass upon the third-party complaint asserted by the Government against American. On appeal, the Court of Appeals for the Tenth Circuit affirmed the judgment by a divided vote,8 the majority agreeing with the lower court that the complaints failed to state a cause of action upon which relief could be based under either the Oklahoma or the Missouri Wrongful Death Act. In dissent, the chief judge, believing that Congress intended the internal law of the place where the act or omission occurred to control the rights and liabilities of the parties, stated that he thought it was error to apply the Oklahoma conflict-of-laws rule, and would have remanded the case for a determination of liability under the Oklahoma Act.
4
That the question confronting us is an important one and of a recurring nature is made apparent by the conflicting views expressed in its solution by the lower federal courts. In the five circuits in which it has arisen, resolution of the question has been reached by adoption of one or another of the alternatives urged upon us by the parties to this suit. The petitioners' contention, that the reference in Section 1346(b) to the 'place where the act or omission occurred' directs application of only the internal law of that State—here, Oklahoma—is supported by the Seventh Circuit's decision in Voytas v. United States, 256 F.2d 786, and by the District of Columbia Circuit in Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, as well as by the dissenting judge of the Tenth Circuit in the instant case. The Government's interpretation of the Act, that in order also to give effect to Section 2674,9 providing that the United States shall be liable in the same manner as a private individual, a court must refer to the whole law of the State where the act or omission occurred, was adhered to by the Second Circuit in Landon v. United States, 197 F.2d 128, as well as by the Tenth Circuit in the case at bar. American Airlines, although willing to abide by the interpretation advanced by the Government, suggests, as an alternative, that the internal law of the place where the negligence had its operative effect—here, Missouri—should control. This construction of the Act is supported by the Ninth Circuit's decision in United States v. Marshall, 230 F.2d 183, and by the dissenting opinion in the Union Trust case, supra. It was to resolve the three-fold conflict and to enunciate a rule that can be applied uniformly in Tort Claims Act cases that we granted certiorari. 366 U.S. 916, 81 S.Ct. 1093, 6 L.Ed.2d 240.
I.
5
The principal provision of the Federal Tort Claims Act, originally enacted as Title IV of the Legislative Reorganization Act of 1946,10 is Section 1346(b), reading in pertinent part:
6
'* * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'
7
Section 2674, also relevant to our decision, provides:
8
'The United States shall be liable, respecting * * * tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.'
9
The Tort Claims Act was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances.11 It is evident that the Act was not patterned to operate with complete independence from the principles of law developed in the common law and refined by statute and judicial decision in the various States. Rather, it was designed to build upon the legal relationships formulated and characterized by the States, and, to that extent, the statutory scheme is exemplary of the generally interstitial character of federal law. If Congress had meant to alter or supplant the legal relationships developed by the States, it could specifically have done so to further the limited objectives of the Tort Claims Act. That is, notwithstanding the generally interstitial character of the law, Congress, in waiving the immunity of the Government for tortious conduct of its employees, could have imposed restrictions and conditions on the extent and substance of its liability.12 We must determine whether, and to what extent, Congress exercised this power in selecting a rule for the choice of laws to be applied in suits brought under the Act. And, because the issue of the applicable law is controlled by a formal expression of the will of Congress, we need not pause to consider the question whether the conflict-of-laws rule applied in suits where federal jurisdiction rests upon diversity of citizenship shall be extended to a case such as this, in which jurisdiction is based upon a federal statute.13 In addition, and even though Congress has left to judicial implication the task of giving content to its will in selecting the controlling law, because of the formal expression found in the Act itself, we are presented with a situation wholly distinguishable from those cases in which our initial inquiry has been whether the appropriate rule should be the simple adoption of state law.14 Here, we must decide, first, to which State the words 'where the act or omission occurred' direct us, and, second, whether application of the internal law or the whole law of that State would be most consistent with the legislative purpose in enacting the Tort Claims Act.
II.
10
The legislative history of the Act, although generally extensive,15 is not, except in a negative way, helpful in solving the problem of the law to be applied in a multistate tort action such as is presented by the facts of this case. It has been repeatedly observed that Congress did not consider choice-of-law problems during the long period that the legislation was being prepared for enactment.16 The concern of Congress, as illustrated by the legislative history,17 was the problem of a person injured by an employee operating a government vehicle or otherwise acting within the scope of his employment, situations rarely involving a conflict-of-laws question.18 In these instances, where the negligence and the injury normally occur simultaneously and in a single jurisdiction, the law to be applied is clear, and no solution to the meaning of the words 'the law of the place where the act or omission occurred' is required. Here, however, we are faced with events touching more than one 'place'—a problem which Congress apparently did not explicitly consider—and, thus, we are compelled to give content to those critical words.
11
In the Tort Claims Act Congress has expressly stated that the Government's liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred,19 and we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used. We believe that it would be difficult to conceive of any more precise language Congress could have used to command application of the law of the place where the negligence occurred than the words it did employ in the Tort Claims Act. Thus we first reject the alternative urged by American Airlines. The legislative materials cited to us by American20 not only lack probative force in a judicial sense, but they are completely unpersuasive to support the argument that Congress intended the words 'act or omission' to refer to the place where the negligence had its operative effect. The ease of application inherent in the rule urged by American lends a certain attractiveness, but we are bound to operate within the framework of the words chosen by Congress and not to question the wisdom of the latter in the process of construction. We conclude that Congress has, in the Tort Claims Act, enacted a rule which requires federal courts, in multistate tort actions, to look in the first instance to the law of the place where the acts of negligence took place.
III.
12
However, our task is not completed. Having rejected the third alternative stated initially as inconsistent with the express terminology of the Act, we must now determine the reach of the words 'law of the place.' Do they embrace the whole law of the place where the negligence occurred, or only the internal law of that place? This problem, unlike the initial question discussed under II, supra, has not been dealt with by any formal expression of Congress and we must therefore establish the rule to be applied uniformly by lower federal courts, with due regard to the variant interests and policies expressed by the Tort Claims Act legislation.
13
We believe it fundamental that a section of a statute should not be read in isolation from the context of the whole Act,21 and that in fulfilling our responsibility in interpreting legislation, 'we must not be guided by a single sentence or member of a sentence, but (should) look to the provisions of the whole law, and to its object and policy.'22 We should not assume that Congress intended to set the courts completely adrift from state law with regard to questions for which it has not provided a specific and definite answer in an act such as the one before us which, as we have indicated, is so intimately related to state law. Thus, we conclude that a reading of the statute as a whole, with due regard to its purpose, requires application of the whole law of the State where the act or omission occurred.
14
We are led to our conclusion by other persuasive factors notwithstanding the fact that the very conflict among the lower federal courts that we must here resolve illustrates the also reasonable alternative view expressed by the petitioners. First, our interpretation enables the federal courts to treat the United States as a 'private individual under like circumstances,' and thus is consistent with the Act considered as a whole.23 The general conflict-of-laws rule, followed by a vast majority of the States,24 is to apply the law of the place of injury to the substantive rights of the parties. Therefore, where the forum State is the same as the one in which the act or omission occurred, our interpretation will enable the federal courts to treat the United States as an individual would be treated under like circumstances.25 Moreover, this interpretation of the Act provides a degree of flexibility to the law to be applied in federal courts that would not be possible under the view advanced either by the petitioners or by American. Recently there has been a tendency on the part of some States to depart from the general conflicts rule in order to take into account the interests of the State having significant contact with the parties to the litigation.26 We can see no compelling reason to saddle the Act with an interpretation that would prevent the federal courts from implementing this policy in choice-of-law rules where the State in which the negligence occurred has adopted it. Should the States continue this rejection of the older rule in those situations where its application might appear inappropriate or inequitable,27 the flexibility inherent in our interpretation will also be more in step with that judicial approach, as well as with the character of the legislation and with the purpose of the Act considered as a whole.
15
In the absence of persuasive evidence to the contrary, we do not believe that Congress intended to adopt the inflexible rule urged upon us by the petitioners. Despite the power of Congress to enact for litigation of this type a federal conflict-of-laws rule independent of the States' development of such rules, we should not, particularly in the type of interstitial legislation involved here, assume that it has done so. Nor are we persuaded to require such an independent federal rule by the petitioners' argument that there are other instances, specifically set forth in the Act,28 where the liability of the United States is not coextensive with that of a private person under state law. It seems sufficient to note that Congress has been specific in those instances where it intended the federal courts to depart completely from state law and, also, that this list of exceptions contains no direct or indirect modification of the principles controlling application of choice-of-law rules. Certainly there is nothing in the legislative history that even remotely supports the argument that Congress did not intend state conflict rules to apply to multistate tort actions brought against the Government.29
16
Under our interpretation of the Act we find it unnecessary to judge the effect of the Oklahoma courts' pronouncements that the Oklahoma Wrongful Death Act cannot be given extra-territorial effect.30
IV.
17
Our view of a State's power to adopt an appropriate conflict-of-laws doctrine in a situation touching more than one place has been indicated by our discussion in Part III of this opinion.31 Where more than one State has sufficiently substantial contact with the activity in question, the forum State, by analysis of the interests possessed by the States involved, could constitutionally apply to the decision of the case the law of one or another state having such an interest in the multistate activity.32 Thus, an Oklahoma state court would be free to apply either its own law, the law of the place where the negligence occurred, or the law of Missouri, the law of the place where the injury occurred, to an action brought in its courts and involving this factual situation.33 Both the Federal District Court sitting in Oklahoma, and the Court of Appeals for the Tenth Circuit, have interpreted the pertinent Oklahoma decisions,34 which we have held are controlling, to declare that an action for wrongful death is based on the statute of the place where the injury occurred that caused the death.35 Therefore, Missouri's statute controls the case at bar. It is conceded that each petitioner has received $15,000, the maximum amount recoverable under the Missouri Act, and the petitioners thus have received full compensation for their claims. Accordingly, the courts below were correct in holding that, in accordance with Oklahoma law, petitioners had failed to state claims upon which relief could be granted. The judgment is affirmed.
18
Affirmed.
1
The provisions of the Tort Claims Act are now found in 28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, and 2671—2680, 28 U.S.C.A. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671—2680.
2
28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b).
3
Under 72 Stat. 778, 49 U.S.C. § 1425, 49 U.S.C.A. § 1425, the Administrator of the Federal Aviation Agency is charged with the responsibility of enforcing rules and regulations controlling inspection, maintenance, overhaul and repair of all equipment used in air transportation.
4
Mo.Rev.Stat.1949, § 537.090, V.A.M.S. Subsequent to the origination of these actions the Missouri Code was amended to provide for maximum damages of $25,000. Mo.Rev.Stat.1959, § 537.090.
5
Okl.Stat., 1951, Tit. 12, §§ 1051—1054.
6
The opinion of the District Court is not reported.
7
Gochenour v. St. Louis-San Francisco R. Co., 205 Okl. 594, 239 P.2d 769.
8
285 F.2d 521.
9
28 U.S.C. § 2674, 28 U.S.C.A. § 2674.
10
60 Stat. 842 (1946).
11
See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, for a detailed analysis of the purposes of the Federal Tort Claims Act in the context of its legislative history.
12
Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058.
13
Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. See Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162; McKenzie v. Irving Trust Co., 323 U.S. 365, 65 S.Ct. 405, 89 L.Ed. 305; D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956.
14
See, e.g., Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743; Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956; Royal Indemnity Co. v. United States, 313 U.S. 289, 61 S.Ct. 995, 85 L.Ed. 1; Board of Com'rs of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313. See also discussion in Hart and Wechsler, The Federal Courts and the Federal System, 679 et seq.
15
Hearings before House Committee on the Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess.; S.Rep. No. 1196, 77th Cong., 2d Sess.; H.R.Rep. No. 2245, 77th Cong., 2d Sess.; No. 1287, 79th Cong., 1st Sess.
16
See, e.g., 68 Harv.L.Rev. 1455 (1955); 45 Iowa L.Rev. 125 (1959); 6 N.Y.L.F. 484, 488—490 (1960).
17
See H.R.Rep. No. 2428, 76th Cong., 3d Sess. 3; Hearings on H.R. 5373 and H.R. 6463, note 15, supra, 39, 66; Hearings before a Subcommittee of the House Committee on the Judiciary on H.R. 7236, 76th Cong., 3d Sess. 7, 16; Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess. 9; 69 Cong.Rec. 2192, 2193, 3118; 86 Cong.Rec. 12024.
18
See, e.g., Knecht v. United States, 3 Cir., 242 F.2d 929; Irish v. United States, 9 Cir., 225 F.2d 3; United States v. Praylou, 4 Cir., 208 F.2d 291; Somerset Seafood Co. v. United States, 4 Cir., 193 F.2d 631; D'Anna v. United States, 4 Cir., 181 F.2d 335; Olson v. United States, 8 Cir., 175 F.2d 510; Modla v. United States, D.C., 151 F.Supp. 198; Irvin v. United States, D.C., 148 F.Supp. 25.
19
28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b).
20
Hearings before House Committee on the Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 9, 30. American suggests that support for its argument is found in the testimony of Mr. Francis Shea, then Assistant Attorney General of the United States, before the House Committee on the Judiciary, who stated, when asked where a claimant might bring suit under the Act, that the venue provision allowed suit to be brought either where the claimant resides or where the injury took place. Because the venue provision of the Act also contains the words 'wherein the act or omission complained of occurred' (28 U.S.C. § 1402(b)), 28 U.S.C.A. § 1402(b), American contends that the reference to the place where the injury occurred should control the meaning of the 'act or omission' language in Section 1346(b). In addition to the fact that this testimony bears no relation to the choice-of-laws problems, and that considerations underlying the problem of venue are substantially different from those determining applicable law, we are not persuaded to allow an isolated piece of legislative history to detract from the Act the words Congress expressly employed.
21
National Labor Relations Board v. Lion Oil Co., 352 U.S. 282, 288, 77 S.Ct. 330, 333, 1 L.Ed.2d 331; Cherokee Intermarriage Cases, 203 U.S. 76, 89, 27 S.Ct. 29, 34, 51 L.Ed. 96; Panama Refining Co. v. Ryan, 293 U.S. 388, 439, 55 S.Ct. 241, 256, 79 L.Ed. 446 (Cardozo, J., dissenting).
22
Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309, quoting from United States v. Boisdore's Heirs, 8 How. 113, 122, 12 L.Ed. 1009.
23
28 U.S.C. § 2674, 28 U.S.C.A. § 2674, quoted in the text, supra, as well as 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b), provides that the United States should be treated as an individual defendant would be under like circumstances.
24
Restatement, Conflict of Laws, §§ 377, 378 and 391. This rule has been repeated so frequently that a citation of cases here would serve no purpose. For a collection of cases, see Goodrich, Conflict of Laws, 263—264; Stumberg, Conflict of Laws, 182—187; 25 C.J.S. Death § 28, nn. 27—30.
25
For example, had the petitioners in the instant case brought suit against American as well as the United States, the petitioners' interpretation of the Act would have the District Court determine the American's liability by the law of Missouri and the United States' by the law of Oklahoma. Under our construction of the Act, however, both defendants' liability would be determined by the law of Missouri. However, because of the venue provision in the statute, allowing suit to be brought where all the plaintiffs reside as well as where the act or omission occurred (28 U.S.C. § 1402(b), 28 U.S.C.A. § 1402(b); see Knecht v. United States, 3 Cir., 242 F.2d 929; Olson v. United States, 8 Cir., 175 F.2d 510), a situation may arise where a District Court could not determine the Government's and a private individual's liability in exactly the same manner.
26
Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162; Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365; Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814. See Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan.L.Rev. 205 (1958). Cf. Vrooman v. Beech Aircraft Corp., 10 Cir., 183 F.2d 479; Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333, 143 A. 163, 61 A.L.R. 846; Caldwell v. Gore, 175 La. 501, 143 So. 387; Burkett v. Globe Indemnity Co., 182 Miss. 423, 181 So. 316.
27
In addition to the cases cited in note 26, supra, see the opinion by Mr. Justice Black in Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161—162, 67 S.Ct. 237, 239, 91 L.Ed. 162, where it is stated in context to a different but analogous problem:
'In determining which contact is the most significant in a particular transaction, courts can seldom find a complete solution in the mechanical formulae of the conflicts of law. Determination requires the exercise of an informed judgment in the balancing of all the interests of the states with the most significant contacts in order best to accommodate the equities among the parties to the policies of those states.'
28
The Act permits claimants to sue only in the federal courts, and not in the state courts which are available in actions against a private individual, § 1346(b); the Act prescribes its own period of limitations which may be shorter or longer than that of the State, § 2401(b); the claimant cannot obtain a trial by jury under the Act, although he could against a private individual, § 2402; the claimant cannot obtain interest prior to judgment in suits under the Act regardless of the state rule governing private individuals, § 2674; the claimant cannot obtain punitive damages under the Act, even though state law may provide for it as against a private defendant, § 2674; the claimant cannot recover any damages against the United States on any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, whereas he could recover such damages against a private individual, § 2680(h); the claimant cannot obtain any recovery against the United States on a claim arising in a foreign country, although he could against a private individual, § 2680(k); and the Act exempts the Government from liability for claims based on various types of activities, although a private individual would be liable in the same circumstances, § 2680.
29
In fact, despite the ambiguity that exists in the history due to the fact that Congress did not specifically consider the choice-of-laws problem, the legislative material indicates that Congress thought in terms of state law being applicable. The term 'law of the place where the act or omission occurred' was particularized as (1) the law of the situs of the wrongful act or omission. Hearings before House Committee on the Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 35; (2) local law, id., at 26, 27, 30, 59 and 61; S.Rep. No. 1196, 77th Cong., 2d Sess. 6; H.R.Rep. No. 2245, 77th Cong., 2d Sess. 9; H.R.Rep. No. 1287, 79th Cong., 1st Sess. 4; S.Rep. No. 1400, 79th Cong., 2d Sess. 32; (3) local tort law. Hearings before House Committee on the Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 30; (4) the law of the situs of the alleged tort. Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess. 44; and (5) the locale of the injury or damage. Hearings before the House Committee on the Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 9.
30
Gochenour v. St. Louis-San Francisco R. Co., 205 Okl. 594, 239 P.2d 769. See Fenton v. Sinclair Refining Co., 206 Okl. 19, 240 P.2d 748.
31
Supra, 369 U.S., pp. 12—13, 82 S.Ct., pp. 593—594 and cases cited. See also Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183; Watson v. Employers Liability Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74; Pacific Employers Ins. Co. v. Industrial Accident Comm., 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940. Cf. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178; Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926.
32
See, e.g., the cases cited in note 26, supra.
33
Alabama G.S.R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 18 L.R.A. 433; Otey v. Midland Valley R. Co., 108 Kan. 755, 197 P. 203; Connecticut Valley Lumber Co. v. Maine Central R. Co., 78 N.H. 553, 103 A. 263; El Paso & N.W.R. Co. v. McComus, 36 Tex.Civ.App. 170, 81 S.W. 760 (holding that the law of the place of injury controls) and Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (holding that the law of the place of negligence controls). See also Hunter v. Derby Foods, 2 Cir., 110 F.2d 970, 133 A.L.R. 255; 35 Col.L.Rev. 202.
34
Gochenour v. St. Louis-San Francisco R. Co., 205 Okl. 594, 239 P.2d 769; Miller v. Tennis, 140 Okl. 185, 282 P. 345. See Fenton v. Sinclair Refining Co., 206 Okl. 19, 240 P.2d 748.
35
We are aware that in the Oklahoma cases cited in note 34, supra, both the injury and negligence occurred in the same sister State, and that the two courts below relied largely on dictum in those cases to conclude that Oklahoma would follow the general rule that the law of the place of injury would control even had the negligence that caused the injury taken place in Oklahoma. The petitioners here do not contend that this was an erroneous interpretation of state law. We ordinarily accept the determinations of Courts of Appeals on questions of state law and do so here under the circumstances presented. General Box Co. v. United States, 351 U.S. 159, 165, 76 S.Ct. 728, 732, 100 L.Ed. 1055; Estate of Spiegel v. Commissioner, 335 U.S. 701, 707—708, 69 S.Ct. 301, 303—304, 93 L.Ed. 330; Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246.
| 78
|
369 U.S. 38
82 S.Ct. 537
7 L.Ed.2d 557
Hattiebelle O. SIMONSON, Trustee in Bankruptcy, etc., et al., Petitioners,v.R. C. GRANQUIST, District Director of Internal Revenue, et al.
No. 83.
Argued Jan. 18, 1962.
Decided March 5, 1962.
Donald A. Schmechel, Seattle, Wash., and Fred A. Granata, Portland, Or., for petitioners.
Richard J. Medalie, Washington, D.C., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
These two cases, consolidated for argument here, involve controversies between the United States and bankruptcy trustees concerning the right of the Government to recover federal tax penalties against the estate of a bankrupt.1 Because the tax penalties constituted perfected liens on the estate of the bankrupt,2 the Court of Appeals for the Ninth Circuit, following one of its own prior decisions which subsequently had been supported by both the Sixth and the Tenth Circuits,3 sustained District Court judgments holding the penalty claims allowable. 9 Cir., 287 F.2d 489, 491. Since the Fourth and Fifth Circuits have held to the contrary,4 we granted certiorari to resolve the conflict. 366 U.S. 943, 81 S.Ct. 1673, 6 L.Ed.2d 854.
2
Two provisions of the Bankruptcy Act, §§ 57, sub. j and 67, sub. b, are asserted to have particular relevance to the question. Section 57, sub. j provides:
3
'Debts owing to the United States or to any State or any subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose * * *.'5
Section 67, sub. b provides, however:
4
'(S)tatutory liens * * * for taxes and debts owing to the United States * * * may be valid against the trustee, even though arising or perfected * * * within four months prior to the filing of the petition initiating a proceeding under this Act by or against him. * * *'6
5
Despite the fact that the language of § 57, sub. j broadly prohibits the allowance of penalty claims in bankruptcy without regard to whether such claims are secured or unsecured, the Government argues that this section should be interpreted to apply to unsecured penalty claims only and that secured claims, even though for penalties, should be allowed under § 67, sub. b. Its argument starts from the fact that the Bankruptcy Act primarily provides a way to gather the unencumbered assets of an insolvent debtor for distribution among his unsecured creditors, but, though containing some provisions applicable to secured creditors, generally leaves those creditors secured by mortgages and liens free to enforce their claims directly against the property by which those claims are secured. From this and a section-by-section analysis of the Act, the Government reasons that the 'claims' referred to in § 57, which governs the 'Proof and allowance of claims,' are not the claims of secured creditors but only the 'claims' of unsecured creditors against the fund created by unencumbered assets, with which the Act primarily deals. On this basis the Government contends that § 57, sub. j, being a part of § 57, must be read as barring only those penalties that have not yet ripened into a lien so as to become a charge upon the bankrupt's property.
6
We think, however, that the language of § 57, sub. j is itself a more dependable guide to its meaning than this argument from the general structure of the Bankruptcy Act. Unquestionably that language is broad enough to bar all penalties, whether secured by lien or not, and we think the section was designed to do precisely that. For it plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a 'pecuniary' loss. So understood, this section, which has been a part of the Bankruptcy Act since its enactment in 1898, is in keeping with the broad aim of the Act to provide for the conservation of the estates of insolvents to the end that there may be as equitable a distribution of assets as is consistent with the type of claims involved. Moreover, the prohibition of all tax penalties in bankruptcy is wholly consistent with the policy of the penalty provisions themselves. Tax penalties are imposed at least in part as punitive measures against persons who have been guilty of some default or wrong.7 Enforcement of penalties against the estates of bankrupts, however, would serve not to punish the delinquent taxpayers, but rather their entirely innocent creditors.
7
When we turn to the language of § 67, sub. b, we find nothing that indicates a purpose to require the general creditors of a bankrupt to suffer because of penalties designed to be inflicted upon the bankrupt himself. Indeed, there is not a single word in that section regarding penalties, and the plain purpose of the section is merely to prevent certain liens, including statutory tax liens, 'arising or perfected * * * within four months prior to the filing of the (bankruptcy) petition,' from being set aside and declared invalid under § 60 as preferential.8 Thus § 67, sub. b expressly declares that it is to take precedence over any 'provisions of section 60 of this Act to the contrary * * *.' Section 67, sub. b cannot therefore be read as showing a congressional purpose to make penalties allowable contrary to the special and specific language of § 57, sub. j which makes them not allowable.9
8
The Government argues, however, that the legislative history of the two sections supports the allowance of penalties when they have ripened into liens. Without discussing the varied arguments to this effect in detail, we think the legislative history cited supports no such conclusion.10 Nor do we think that any inference can be drawn from the failure of Congress to amend the Act for although some courts have held liened penalty claims allowable, others have held precisely the opposite.11
9
It is true that the United States has long had an absolute priority for debts due from insolvent debtors and that the Bankruptcy Act generally accords secured creditors a preferred position. But § 57, sub. j places penalties in a category quite different from ordinary debts, one not favored in bankruptcy, and the character of a penalty is by no means changed by calling it a lien.
10
Reversed.
11
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.
12
Of course one agrees with the Court that an important purpose of the Bankruptcy Act was to ensure an equitable distribution of assets among creditors. I also agree that § 57, sub. j, 11 U.S.C. § 93, sub. j, 11 U.S.C.A. § 93, sub. j, denying claims for penalties against the estate, reflects a policy against disadvantaging innocent creditors for the wrongs of the bankrupt. If that were the only policy of the Act, § 57, sub. j would hold the exclusive field and there would be no problem. As it is, if there be a countervailing policy as a matter of historic bankruptcy law, it can neither be discarded nor disregarded in giving § 57, sub. j its proper setting and its resulting scope.
13
In bankruptcy a sharp distinction has always been drawn between secured and unsecured creditors. Secured creditors may not vote at creditors' meetings, § 56, sub. b, 11 U.S.C.A. § 92, sub. b, nor may their claims be allowed against the bankrupt estate, § 57, sub. e, except to the extent that these claims exceed the value of the security. Fully secured creditors are not counted in determining the total number of creditors in order to ascertain the number required to initiate involuntary bankruptcy, § 59, sub. e, 11 U.S.C.A. § 95, sub. e. Liens have been held unaffected by a discharge under § 17, e.g., Prebyl v. Prudential Ins. Co., 8 Cir., 98 F.2d 199; see 1 Collier, Bankruptcy 17.29 (14th ed. 1961).
14
Sections 64, 65, and 67, 11 U.S.C.A. §§ 104, 105, 107 establish three classes of debts: those which are secured by lien, those which are given priority and all others. Those having neither security nor priority are satisfied on a pro rata basis, § 65. Those with priority, as listed in § 64, are to be paid in full in specified order before the distribution of pro rata dividends to other claimants. Liens, in § 67, sub. d of the statute as enacted in 1898, 30 Stat. 544, 564, were declared to be unaffected by the statute—they were entirely without its scope. Consequently they were entitled to precedence over claims granted priority by § 64. City of Richmond v. Bird, 249 U.S. 174, 39 S.Ct. 186, 63 L.Ed. 543. This section was omitted in the 1938 revision because its wording permitted inferences that by negative implication it disallowed certain liens not otherwise invalidated by the Act, and because the substance of the provision was thought to be preserved in other sections—not because of disapproval in policy. S.Rep. No. 1916, 75th Cong., 3d Sess. 17 (1938); see 4 Collier, supra, 67.20. This Court has held that liens remain immune from and are not displaced by the Act's priorities under the 1938 Act, Goggin v. California Labor Div., 336 U.S. 118, 126—127, 69 S.Ct. 469, 473, 474, 93 L.Ed. 543, and liens for federal taxes are expressly preserved by § 67, sub. b. A limited exception to the immunity of liens was made in § 67, sub. c, but the extent of the invalidation or subordination of liens to other debts was carefully circumscribed, and the basic lien immunity remains. 4 Collier, supra, 67.20(3)—67.20(7).
15
Congress has thus treated liens as outside the policy of equal treatment of creditors in bankruptcy. 3 Collier, supra, 57.07. A lienor does not hold simply a first priority; he has 'a right to enforcement independent of bankruptcy,' id., 64.02, at 2061. The Bankruptcy Act deals with the distribution of unencumbered assets among unsecured creditors. Id., 60.01. Lienholders need no Bankruptcy Act. Liens are independent of and essentially unaffected by bankruptcy proceedings. I agree with the court below that liens are unaffected by § 57, sub. j; they are outside its scope.
1
In the first case, Simonson v. Granquist, there is another point which we need not reach because of the disposition made here.
2
In Simonson v. Granquist the liens arose under Int.Rev.Code of 1954, § 6321, 26 U.S.C.A. § 6321; in Harris v. United States, they arose under Int.Rev.Code of 1939, § 3670, 26 U.S.C.A. § 3670.
3
In re Knox-Powell-Stockton Co. (C.A.9th Cir.), 100 F.2d 979; Commonwealth of Kentucky v. Farmers Bank (C.A.6th Cir.), 139 F.2d 266; United States v. Mighell (C.A.10th Cir.), 273 F.2d 682, 77 A.L.R.2d 1119.
4
United States v. Harrington (C.A.4th Cir.), 269 F.2d 719; United States v. Phillips (C.A.5th Cir.), 267 F.2d 374.
5
30 Stat. 561, as amended, 11 U.S.C. § 93, sub. j, 11 U.S.C.A. § 93, sub. j.
6
52 Stat. 876, as amended, 11 U.S.C. § 107, sub. b, 11 U.S.C.A. § 107, sub. b.
7
See, e.g., United States v. Childs, 266 U.S. 304, 307, 45 S.Ct. 110, 69 L.Ed. 299.
8
30 Stat. 562, as amended, 11 U.S.C. § 96, 11 U.S.C.A. § 96. See Analysis of H.R. 12889, 74th Cong., 2d Sess. 211, note 1; 4 Collier, Bankruptcy 183, particularly note 12.
9
Cf. Gardner v. State of New Jersey, 329 U.S. 565, 580—581, 67 S.Ct. 467, 475, 91 L.Ed. 504.
10
Indeed what little legislative history there is might well be taken to indicate an intent to bar penalties whether liened or not. Thus, the minority report on the Torrey Bill which eventually became the Bankruptcy Act of 1898 stated as an objection to § 57, sub. j, the fact that although 'penalties and forfeitures, when merged into judgment * * * are liens upon the debtor's estate, this bill treats them as worthless and forbids their payment.' H.R.R.ep. No. 1674, 52d Cong., 1st Sess., pt. 2, pp. 13—14.
11
Compare, e.g., In re Knox-Powell-Stockton Co., 9 Cir., 100 F.2d 979, and Commonwealth of Kentucky v. Farmers Bank, 139 F.2d 266, with United States v. Phillips, 5 Cir., 267 F.2d 374, and In re Burch, D.C., 89 F.Supp. 249. In 1960 Congress passed an Act containing a provision applying § 57, sub. j, to penalties 'whether or not secured by lien,' but this was vetoed by the President. 106 Cong.Rec. 19168.
| 78
|
369 U.S. 60
82 S.Ct. 680
7 L.Ed.2d 636
ORGANIZED VILLAGE OF KAKE, and Angoon Community Association, Appellants,v.William A. EGAN, Governor of Alaska.
No. 3.
March 19, 1962.
On Appeal from the Supreme Court of the State of Alaska.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a companion case to No. 2, Metlakatla Indian Community v. Egan, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562, but calls for separate treatment. Appellants seek the reversal of a decision of the Supreme Court of Alaska, 362 P.2d 901, affirming the dismissal of their petitions for injunctions against interference with their operation of fish traps in southeastern Alaska.
2
The Organized Village of Kake and the Angoon Community Association are corporations chartered under the Wheeler-Howard Act of 1934, 48 Stat. 984, 988, as amended, 49 Stat. 1250 (1936), 25 U.S.C. §§ 473a, 476, 477, 25 U.S.C.A. §§ 473a, 476, 477. Kake is located on Kupreanof Island, 100 miles south of Juneau. Angoon is located on Admiralty Island, 60 miles south of Juneau. They are occupied by Thlinget or Tlinget Indians, native to Alaska.
3
Both communities are entirely dependent upon salmon fishing. In pursuance of a policy to create a sound fishing economy for the two groups, the United States purchased canneries and related properties for Angoon in 1948 and for Kake in 1950. Since these dates appellants have operated fish traps at specified locations in nearby waters, under permits granted by the Army Engineers to erect traps in navigable waters and by the United States Forest Service to anchor them in the Tongass National Forest. In March 1959 the Secretary of the Interior, by regulations issued under authority of the White Act, 43 Stat. 464, as amended, 48 U.S.C. §§ 221—228, 48 U.S.C.A. §§ 221—228, and the Alaska Statehood Act, 72 Stat. 339, 48 U.S.C.A. preceding section 21, permitted Angoon to operate three fish traps during the 1959 season and Kake four. 24 Fed.Reg. 2053, 2069. The following year the Secretary authorized permanent operation of these trapsites and specified one additional site for Angoon and five more for Kake for possible future authorization. 25 CFR (1961 Supp.) pt. 88.
4
The history of this litigation is recited in Metlakatla Indian Community v. Egan, supra. It is sufficient to note here that Alaska in 1959 threatened to enforce against Kake and Angoon her anti-fish-trap conservation law, Alaska Laws 1959, c. 17, as amended by id., c. 95; that the State seized one fish trap at Kake, arrested the President of the Kake Village Council and the foreman of the crew attempting to moor the trap, and filed informations against them; that suit was filed by both Kake and Angoon in the interim United States District Court for Alaska to enjoin this interference with their claimed fishing rights; and that the dismissal of both complaints was affirmed by the Supreme Court of Alaska.
5
The situation here differs from that of the Metlakatlans in that neither Kake nor Angoon has been provided with a reservation and in that there is no statutory authority under which the Secretary of the Interior might permit either to operate fish traps contrary to state law. Appellants do not rely heavily on the Secretary's regulations. Neither the White Act nor the Statehood Act, cited by the Secretary, supports a grant of immunity from state law. The White Act was a conservation and anti-monopoly measure. It authorized the Secretary to limit fishing times, places, and equipment in order to conserve fish but forbade him in so doing to create exclusive rights, even in Indians. Hynes v. Grimes Packing Co., 337 U.S. 86, 122—123, 69 S.Ct. 968, 988—989, 93 L.Ed. 1231. Because the rights claimed are exclusive in the Kakes and Angoons, they cannot have been created pursuant to the White Act, even though that statute now applies, if at all, only to Indians. Moreover, the White Act gives the Secretary power only to limit fishing, not to grant rights. The Statehood Act retained 'absolute jurisdiction and control' of Indian 'property (including fishing rights)' in the United States, but it did not give powers of the nature claimed to the Secretary of the Interior. No other source of authority appears available. The provisions now found in 25 U.S.C. §§ 2 and 9, 25 U.S.C.A. §§ 2, 9, referring to the President's power to prescribe regulations for effectuating statutes 'relating to Indian affairs,' to settle accounts of 'Indian affairs,' and concerning 'the management of all Indian affairs and of all matters arising out of Indian relations,' derive from statutes of 1832 and 1834, 4 Stat. 564 and 4 Stat. 735, 738. In keeping with the policy of almost total tribal self-government prevailing when these statutes were passed, see 369 U.S., pp. 71—72, 82 S.Ct., p. 569, infra, the Interior Department itself is of the opinion that the sole authority conferred by the first of these is that to implement specific laws, and by the second that over relations between the United States and the Indians—not a general power to make rules governing Indian conduct. United States Department of the Interior, Federal Indian Law (1958), pp. 54—55; Cohen, Handbook of Federal Indian Law (1945), p. 102. We agree that they do not support the fish-trap regulations.
6
Both communities operate their traps under permits granted by the Army Corps of Engineers and by the United States Forest Service. But neither of these permits grants a right to be free of state regulation or prohibition. Like a certification by the Interstate Commerce Commission, each is simply acknowledgment that the activity does not violate federal law, and not an exemption from state licensing or police power requirements. Cf. Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969; South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734. The Engineers have no objection under the Rivers and Harbors Act, 30 Stat. 1121, 1151, 33 U.S.C. § 403, 33 U.S.C.A. § 403, to the obstruction of navigable streams incident to the operation of fish traps at Kake and Angoon; the Forest Service has no objection to the use of National Forest land to anchor them. Neither attempted to exempt these traps from state law.
7
As in the companion case, certain grounds relied on by the Alaska court are no longer urged by the State. The principal dispute now concerns the meaning of § 4 of the Statehood Act, in which the State disclaimed all right and title to and the United States retained 'absolute jurisdiction and control' over, inter alia, 'any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives.'
8
The United States in its brief amicus curiae contended that the reservation of absolute jurisdiction over Indian 'property (including fishing rights)' ousted the State from any regulation of fishing by Indians in Alaska. Appellants urge that Congress intended to protect the Indians in their freedom to continue fishing as they had done before statehood, so that Alaska cannot interfere with the Indian fishing actually practiced at that time. They argue in addition that in using fish traps they were exercising an aboriginal right to fish that was protected by § 4. The court below concluded that aboriginal rights of Alaskan natives have been extinguished, that appellants have no rights not enjoyed in common with all other Alaskans, and that § 4 protects only exclusive rights given Indians by federal law.
9
The United States wisely abandoned its position that Alaska has disclaimed the power to legislate with respect to any fishing activities of Indians in the State. Legislative history reveals no such intention in Congress, which was concerned with the protection of certain Indian claims in existence at the time of statehood. See, e.g., Hearings Before House Committee on Interior and Insular Affairs on H.R. 2535 and related bills, 84th Cong., 1st Sess. 124—131, 266—267, 381—383 (1955). But we cannot accept Alaska's contention that Indian 'property 'including fishing rights)' refers only to property owned by or held for Indians under provisions of federal law. Section 4 must be construed in light of the circumstances of its formulation and enactment. See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87, 39 S.Ct. 40, 41, 63 L.Ed. 138. Congress was aware that few such rights existed in Alaska. Its concern was to preserve the status quo with respect to aboriginal and possessory Indians claims, so that statehood would neither extinguish them nor recognize them as compensable. See, e.g., House Hearings, supra, 130, 384 (1955) (Delegate Bartlett); Hearings Before Senate Committee on Interior and Insular Affairs on S. 50, 83d Cong., 2d Sess. 227 (Senator Jackson), 260—261 (1954).1
10
Discussion during hearings on the 1955 House bill affords further evidence that claims not based on federal law are included. Section 205 of that bill (like § 6 of the bill as enacted) authorized Alaska to select large tracts of United States land for transfer to state ownership. It was understood that the disclaimer provision left the State free to choose Indian 'property' if it desired, but that such a taking would leave unimpaired the Indians' right to sue the United States for any compensation that might later be established to be due. See House Hearings, supra, 135 (1955) (Delegate Bartlett). Feeling that experience had shown this procedure too slow to give prompt relief to the Indians, Oklahoma's Representative Edmondson proposed to exempt Indian property from the State's selection. Id., at 381. This was rejected as virtually destroying Alaska's right to select lands. For, although Representative Edmondson pointed out that the disclaimer extended only to property owned by Indians or held in trust for them, four representatives clearly stated their belief that the disclaimer included not just the few Alaska reservations but also the aboriginal or other unproved claims in dispute, which covered most if not all of Alaska. Id., at 383 (Representatives Engle, Dawson, Metcalf, Westland).
11
'Fishing rights' first appeared in a Senate bill reported in 1951, S.Rep. No. 315, 82d Cong., 1st Sess. 2. Earlier bills had mentioned only land. The fishing-rights provision is unique to Alaska, although the disclaimer is in other respects the same as in earlier statutes. See 369 U.S., pp. 67—68, 82 S.Ct., pp. 566 567, infra. It was included because fishing rights are of vital importance to Indians in Alaska. House Hearings, supra, 125 (1955) (Delegate Bartlett). The existence of aboriginal fishing rights was affirmed by the Interior Department's Solicitor in 1942, 57 I.D. 461. There was almost no discussion of 'fishing rights' in Congress. In earlier hearings the Senate Committee was considering a suggestion by Senator Cordon that all Indian property be granted to the State, reserving the right to seek federal compensation, except for property actually occupied by Indians. Asked to describe Indian possessory rights, Governor Heintzleman portrayed a smokehouse beside a stream, 50 miles from the town where they live, visited for fishing purposes perhaps two weeks each year. Senate Hearings, supra, 137 (1954).
12
On a similar basis the Kakes and the Angoons have fished at the disputed locations since 1948 and 1950. It appears to be Alaskan custom that, although traps are taken from the water and replaced each year, one does not 'jump' a trap-site. The prior claim of the first trapper is respected. See United States v. Libby, McNeil & Libby, 107 F.Supp. 697, 700, 14 Alaska 37, 42 (D.Alaska 1952); Gruening, The State of Alaska (1954), p. 171; 57 I.D. 461, 462 (1942). The Statehood Act by no means makes any claim of appellants to fishing rights compensable against the United States; neither does it extinguish such claims. The disclaimer was intended to preserve unimpaired the right of any Indian claimant to assert his claim, whether based on federal law, aboriginal right, or simply occupancy, against the Government. Appellants' claims are 'property 'including fishing rights)' within § 4.
13
Because § 4 of the Statehood Act provides that Indian 'property 'including fishing rights)' shall not only be disclaimed by the State as a proprietary matter but also 'shall be and remain under the absolute jurisdiction and control of the United States,' the parties have proceeded on the assumption that if Kake and Angoon are found to possess 'fishing rights' within the meaning of this section the State cannot apply her law. Consequently argument has centered upon whether appellants have any such 'rights.'
14
The assumption is erroneous. Although the reference to fishing rights is unique, the retention of 'absolute' federal jurisdiction over Indian lands adopts the formula of nine prior statehood Acts. Indian lands in Arizona remained 'under the absolute jurisdiction and control' of the United States, 36 Stat. 557, 569; yet in Williams v. Lee, 358 U.S. 217, 220, 223, 79 S.Ct. 269, 270, 272, 3 L.Ed.2d 251, we declared that the test of whether a state law could be applied on Indian reservations there was whether the application of that law would interfere with reservation self-government. The identical language appears in Montana's admission Act, 25 Stat. 676, 677, yet in Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419, the Court held that a non-Indian who was accused of murdering another non-Indian on a Montana reservation could be prosecuted only in the state courts. The Montana statute applies also to North Dakota, South Dakota, and Washington. Identical provisions are found in the Acts admitting New Mexico (36 Stat. 557, 558—559) and Utah (28 Stat. 107, 108), and in the Constitutions of Idaho (1890, Art. 21, § 19) and Wyoming (1890, Art. 21, § 26), which were ratified by Congress (26 Stat. 215 (Idaho); 26 Stat. 222 (Wyoming)).
15
Draper and Williams indicate that 'absolute' federal jurisdiction is not invariably exclusive jurisdiction. The momentum of substantially identical past admission legislation touching Indians carries the settled meaning governing the jurisdiction of States over Indian property to the Alaska Statehood Act in light of its legislative history.
16
Section 4 of the Statehood Act contains three provisions relating to Indian property. The State must disclaim right and title to such property; the United States retains 'absolute jurisdiction and control' over it; the State may not tax it. On the urging of the Interior Department that Alaska be dealt with as had other States, these provisions replaced an earlier section granting to the State all lands not actually possessed and used by the United States. Hearings Before a Subcommittee of the House Committee on Public Lands on H.R. 206 and H.R. 1808, 80th Cong., 1st Sess. 2, 12, 14 (1947). The first and third provisions have nothing to do with this case; the second does not exclude state conservation laws from appellants' fish traps.
17
The disclaimer of right and title by the State was a disclaimer of proprietary rather than governmental interest. It was determined, after some debate, to be the best way of ensuring that statehood would neither extinguish nor establish claims by Indians against the United States. If lands subject to the claim of Indian rights were transferred to the State, the Indians were not thereby to lose the right to make claims against the United States for damages. See Senate Hearings, supra, 286 (1954).
18
The provision for 'absolute jurisdiction and control' received little attention in Congress. In the 1954 Senate hearings the Committee was considering a provision copied from the Oklahoma statute that Indian lands should remain 'subject to the jurisdiction, disposal and control of the United States.' Enabling Act, § 3, 34 Stat. 267, 270. Mr. Barney, on behalf of the Justice Department, urged the inclusion of such a provision in order to avoid the possibility that, under United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869, federal criminal jurisdiction over Indian reservations might be extinguished by statehood. Senators Barrett and Jackson thereupon expressed the clear desire that federal jurisdiction not be made exclusive over all disclaimed areas. Mr. Barney denied that the provision would deprive the State of 'political jurisdiction' over disclaimed properties. Senator Cordon declared:
19
'The State may well waive its claim to any right or title to the lands and still have all of its political or police power with respect to the actions of people on those lands, as long as that does not affect the title to the land.'
20
Senator Jackson said: 'All that you are doing here is a disclaimer of proprietary interest,' and Mr. Barney agreed. Senator Cordon said:
21
'The act of admission gives to the State of Alaska political jurisdiction, including all that is meant by the term 'police power,' within its boundaries unless there be express or definitely implied, which is the same thing, a reservation of exclusive jurisdiction in the United States.'
22
Senators Barrett and Jackson and Mr. Barney agreed. Mr. Slaughter of the Interior Department pointed out that a later section of the bill, now § 11, provided for 'exclusive' federal jurisdiction over Mt. McKinley National Park. Mr. Barney, in answer to a direct question, stated that 'jurisdiction' in the Oklahoma statute and in his proposal for Indian property did not mean exclusive jurisdiction. Senate Hearings, supra, 283—287 (1954). The bill as reported contained no provision on jurisdiction but only a disclaimer of right and title, a reservation of federal power to extintinguish Indian claims as if there had been no statehood Act, and an exemption from state taxation. Id., at 331. Provisions retaining federal 'jurisdiction' and 'absolute jurisdiction' were considered interchangeable by at least one committee, which reported the disclaimer in an Alaska bill as 'almost identical' with those in the preceding 13 admission Acts. S.Rep.No. 315, 82d Cong., 1st Sess. 15 (1951).
23
Most statehood bills contained more common phrasing 'absolute jurisdiction and control' rather than the Oklahoma phrase. Although this was the usual language employed to retain federal power in statehood acts, the Senate Committee in 1958 out of an abundance of caution deleted the word 'jurisdiction' in order that no one might construe the statute as abolishing state power entirely. The Committee declared that it was not its intention by the retention of federal control to make the Alaska situation any different from that prevailing in other States as to state jurisdiction over Indian lands. S.Rep.No. 1163, 85th Cong., 1st Sess. 15 (1957). The House bill, which retained the usual language, was passed first, 104 Cong. Rec. 9756, and the Senate made no amendments to the House bill because it feared that statehood might be lost once again if the House had to act on a conference report. 104 Cong. Rec. 12009—12010. Senator Jackson stated that 'the differences are of wording and language rather than policy * * * designed to define more clearly some of the jurisdictional problems involved. * * * The objective of both bills is identical. There is strong evidence that the end product of both bills would be identical.' The Senate amendment was designed simply to make clear what an examination of past statutes and decisions makes clear also: that the words 'absolute jurisdiction and control' are not intended to oust the State completely from regulation of Indian 'property (including fishing rights).' 'Absolute' in § 4 carried the gloss of its predecessor statutes, meaning undiminished, not exclusive. Cf. Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 47—48, 49 S.Ct. 52, 54, 73 L.Ed. 170. The power of Alaska over Indians, except as granted by Congress in 1958, 72 Stat. 545, is the same as that of many other States.
24
The relation between the Indians and the States has by no means remained constant since the days of John Marshall. In the early years, as the white man pressed against Indians in the eastern part of the continent, it was the policy of the United States to isolate the tribes on territories of their own beyond the Mississippi, where they were quite free to govern themselves. The 1828 treaty with the Cherokee Nation, 7 Stat. 311, guaranteed the Indians their lands would never be subjected to the jurisdiction of any State or Territory. Even the Federal Government itself asserted its power over these reservations only to punish crimes committed by or against non-Indians. 1 Stat. 469, 470; 2 Stat. 139. See 18 U.S.C. § 1152, 18 U.S.C.A. § 1152.
25
As the United States spread westward, it became evident that there was no place where the Indians could be forever isolated. In recognition of this fact the United States began to consider the Indians less as foreign nations and more as a part of our country. In 1871 the power to make treaties with Indian tribes was abolished, 16 Stat. 544, 566, 25 U.S.C. § 71, 25 U.S.C.A. § 71. In 1887 Congress passed the General Allotment Act, 24 Stat. 388, as amended, 25 U.S.C. §§ 331—358, 25 U.S.C.A. §§ 331—358, authorizing the division of reservation land among individual Indians with a view toward their eventual assimilation into our society. In 1885, departing from the decision in Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030, Congress intruded upon reservation self-government to extend federal criminal law over several specified crimes committed by one Indian against another on Indian land, 23 Stat. 362, 385, as amended, 18 U.S.C. § 1153, 18 U.S.C.A. § 1153; United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228. Other offenses remained matters for the tribe, United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196.
26
The general notion drawn from Chief Justice Marshall's opinion in Worcester v. Georgia, 6 Pet. 515, 561, 8 L.Ed. 483; The Kansas Indians, 5 Wall. 737, 755—757, 18 L.Ed. 667; and The New York Indians, 5 Wall. 761, 18 L.Ed. 708, that an Indian reservation is a distinct nation within whose boundaries state law cannot penetrate, has yielded to closer analysis when confronted, in the course of subsequent developments, with diverse concrete situations. By 1880 the Court no longer viewed reservations ad distinct nations. On the contrary, it was said that a reservation was in many cases a part of the surrounding State or Territory, and subject to its jurisdiction except as forbidden by federal law. Utah & Northern R. Co. v. Fisher, 116 U.S. 28, 31, 6 S.Ct. 246, 247, 29 L.Ed. 542. In Langford v. Monteith, 102 U.S. 145, 26 L.Ed. 53, the Court held that process might be served within a reservation for a suit in territorial court between two non-Indians. In United States v. McBratney, 104 U.S. 621, 21 S.Ct. 924, 45 L.Ed. 1032, and Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419, the Court held that murder of one non-Indian by another on a reservation was a matter for state law.2
27
The policy of assimilation was reversed abruptly in 1934. A great many allottees of reservation lands had sold them and disposed of the proceeds. Further allotments were prohibited in order to safeguard remaining Indian properties. The Secretary of the Interior was authorized to create new reservations and to add lands to existing ones. Tribes were permitted to become chartered federal corporations with powers to manage their affairs, and to organize and adopt constitutions for their own self-government. 48 Stat. 984, 986, 987, 988. These provisions were soon extended to Alaska, 49 Stat. 1250.
28
Concurrently the influence of state law increased rather than decreased. As the result of a report making unfavorable comparisons between Indian Service activities and those of the States, Congress in 1929 authorized the States to enforce sanitation and quarantine laws on Indian reservations, to make inspections for health and educational purposes, and to enforce compulsory school attendance. 45 Stat. 1185, as amended, 25 U.S.C. § 231, 25 U.S.C.A. § 231. See Meriam Problem of Indian Administration (1928); H.R.Rep. No. 2135, 70th Cong., 2d Sess. (1929); Cohen, Handbook of Federal Indian Law, p. 83 (1945); United States Department of the Interior, Federal Indian Law (1958), pp. 126—127. In 1934 Congress authorized the Secretary of the Interior to enter into contracts with States for the extension of educational, medical, agricultural, and welfare assistance to reservations, 48 Stat. 596, 25 U.S.C. § 452, 25 U.S.C.A. § 452. During the 1940's several States were permitted to assert criminal jurisdiction, and sometimes civil jurisdiction as well, over certain Indian reservations. E.g., 62 Stat. 1161; 62 Stat. 1224, 25 U.S.C.A. § 232; 64 Stat. 845, 25 U.S.C.A. § 233; 63 Stat. 705. A new shift in policy toward termination of federal responsibility and assimilation of reservation Indians resulted in the abolition of several reservations during the 1950's. E.g., 68 Stat. 250, 25 U.S.C.A. § 891 et seq. (Menominees); 68 Stat. 718, 25 U.S.C.A. § 564 et seq. (Klamaths).
29
In 1953 Congress granted to several States full civil and criminal jurisdiction over Indian reservations, consenting to the assumption of such jurisdiction by any additional States making adequate provision for this in the future. 67 Stat. 588, 18 U.S.C. § 1162, 28 U.S.C. § 1360, 18 U.S.C.A. § 1162, 28 U.S.C.A. § 1360. Alaska was added to the list of such States in 1958, 72 Stat. 545. This statute disclaims the intention to permit States to interfere with federally granted fishing privileges or uses of property. Finally, the sale of liquor on reservations has been permitted subject to state law, on consent of the tribe itself. 67 Stat. 586, 18 U.S.C. § 1161, 18 U.S.C.A. § 1161. Thus Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall.
30
Decisions of this Court are few as to the power of the States when not granted Congressional authority to regulate matters affecting Indians. In Thomas v. Gay, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740, an Oklahoma territorial tax on the cattle of non-Indian lessees of reservation land was upheld on the authority of the Fisher and Maricopa decisions, supra, which permitted taxation of railroad rights-of-way. The Court conceded that because the lands on which the taxed cattle grazed were leased from Indians the tax might, in contrast to the railroad cases, have an indirect effect on Indians, but that effect was declared to be too remote to require a contrary result. In the latest decision, Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251, we held that Arizona had no jurisdiction over a civil action brought by a non-Indian against an Indian for the price of goods sold the latter on the Navajo Reservation. The applicability of state law, we there said, depends upon 'whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them,' 358 U.S. at 220, 79 S.Ct. at 271. Another recent statement of the governing principle was made in a decision reaffirming the authority of a State to punish crimes committed by non-Indians against non-Indians on reservations: '(I)n the absence of a limiting treaty obligation or Congressional enactment, each state had a right to exercise jurisdiction over Indian reservations within its boundaries,' New York ex rel. Ray v. Martin, 326 U.S. 496, 499, 66 S.Ct. 307, 308, 90 L.Ed. 261.
31
These decisions indicate that even on reservations state laws may be applied to Indians unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law. Congress has gone even further with respect to Alaska reservations, 72 Stat. 545, 18 U.S.C. § 1162, 28 U.S.C. § 1360, 18 U.S.C.A. § 1162, 28 U.S.C.A. § 1360. State authority over Indians is yet more extensive over activities, such as in this case, not on any reservation. It has never been doubted that States may punish crimes committed by Indians, even reservation Indians, outside of Indian country. See Cohen, Indian Rights and the Federal Courts, 24 Minn.L.Rev. 145, 153 (1940), citing Pablo v. People, 23 Colo. 134, 46 P. 636, 37 L.R.A. 636. Even where reserved by federal treaties, off-reservation hunting and fishing rights have been held subject to state regulation, Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244; Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115, in contrast to holdings by state and federal courts that Washington could not apply the laws enforced in Tulee to fishing within a reservation, Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 P. 557; Moore v. United States, 157 F.2d 760, 765 (C.A.9th Cir.). See State v. Cooney, 77 Minn. 518, 80 N.W. 696.
32
True, in Tulee the right conferred was to fish in common with others, while appellants here claim exclusive rights. But state regulation of off-reservation fishing certainly does not impinge on treaty-protected reservation self-government, the factor found decisive in Williams v. Lee. Nor have appellants any fishing rights derived from federal laws. This Court has never held that States lack power to regulate the exercise of aboriginal Indian rights, such as claimed here, or of those based on occupancy. Because of the migratory habits of salmon, fish traps at Kake and Angoon are no merely local matter.
33
Congress has neither authorized the use of fish traps at Kake and Angoon nor empowered the Secretary of the Interior to do so. The judgment of the Supreme Court of Alaska is affirmed. However, in view of all the circumstances and in order to avoid hardship, the stay granted by Mr. Justice Brennan, and continued by the Court, will remain in force until the end of the 1962 salmon fishing season, as defined in the regulations issued by the Secretary of the Interior. It is so ordered.
34
Judgment affirmed.
35
Mr. Justice DOUGLAS, while joining the opinion of the Court, dissents from an extension of the stay for reasons to be stated in an opinion.
36
Mr. Justice DOUGLAS.
37
When the decision in this case was announced on March 5, 1962, 82 S.Ct. 562, I noted that while I joined the opinion of the Court, I dissented from the continuation of the stay and would elaborate my views at a later time. As the decision to extend the stay was reached in Conference on March 2, 1962, there was insufficient time to prepare an opinion by the following Monday.
38
The stay was first granted by Mr. Justice Brennan, 80 S.Ct. 33, 4 L.Ed.2d 34, to maintain the status quo while this litigation was pending. The stay was then plainly justified, as the questions presented were substantial ones. Now, however, the adjudication has been made; and the Court is unanimous in concluding that these Indians have no right to use fish traps. A stay is not needed to protect rights that may arise from future Regulations, as in the Metlakatla case, for any administrative power of the Secretary of the Interior to allow the Kake and Angoon Indians to use traps is lacking. And with all deference, a stay is not shown to be justified on any other grounds.
39
A stay that continues in use for another season a device as nefarious as the fish trap needs potent reasons.
40
The destruction caused by fish traps is notorious. Mr. Justice Van Devanter, conservationist as well as jurist, described an Alaskan fish trap1 designed 'to catch about 600,000 salmon in a single season,' a trap which 'will tend materially to reduce the natural supply of fish accessible to the Indians.' Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78, 87, 39 S.Ct. 40, 41, 63 L.Ed. 138. Dr. David Starr Jordan in his 1904 report of the Alaska Salmon Commission stated, 'If we consider the ultimate interests of Alaska and the permanence of her salmon fisheries, no traps should be allowed anywhere * * *.' Gruening, The State of Alaska (1954), p. 169. Beginning in 1931 the Territorial Legislature memorialized Congress condemning the use of the fish trap because of its adverse effect on salmon and on the salmon industry. See Alaska Sess.Laws 1931, p. 275; Alaska Sess.Laws 1953, pp. 401—402; Alaska Sess.Laws. 1955, pp. 447—448. The 1955 Resolution ended by saying:
41
'WHEREAS, the vast majority of Alaskans, after many decades of first hand experience and study, are convinced that no salmon conservation program can achieve lasting effect unless salmon fish traps are abolished immediately, forever, from Alaskan waters;
42
'NOW THEREFORE, your Memorialist, the Legislature of the Territory of Alaska, respectfully urges and requests that immediate legislation be enacted abolishing fish traps from the waters of the Territory of Alaska.'
43
In 1959, the Alaskan Native Brotherhood, organized to speak for the Indians,2 reiterated its stand 'for complete abolition of traps.'
44
Senator Gruening, on March 6, 1962, issued a statement to the Associated Press which emphasized another invidious effect of the use of fish traps by the Indians:
45
'The 1945 Alaska Territorial Legislature, at my behest, while I was Governor, passed an Act outlawing discrimination in public establishments based on race, creed, or color. This was designed to safeguard Alaska's Native people who had been subject to such discrimination and it did so safeguard them. Secretary Seaton's action would have created an inverse discrimination against Whites deeply sowing seeds of bitterness and arousing interracial friction and antagonism which has no place in America and had disappeared in Alaska. The performance was an inexcusable pressure play. In a referendum of fish traps in 1948, 88.7% of the people of Alaska voted for trap abolition, and Angoon's vote was 49 to 9 and Kake's 123 to 6 against traps. Yet Secretary Seaton sought to force traps upon them and on the people of Alaska.
46
'The Court's decision in the Metlakatla case differs in its conclusion from the Kake and Angoon cases only because of Metlakatla's historically different and unique legal status. It leaves the course to action open to the present Secretary of Interior. It is to be hoped that both he and the people of Metlakatla, who in the 1948 referendum—though owning seven traps—voted 112 to 33 for trap abolition, will agree that privilege and discrimination based on race should finally disappear totally from the 49th State.'
47
The devastating effect of fish traps upon Alaska's economy was described by the Alaska Supreme Court:
48
'It has not been unusual for a single trap to catch as many as 600,000 fish in a single season. The impact of the catch of eleven traps on the fisheries of Southeastern Alaska is considerable from the point of view of conservation. The season's catch of a gill net or purse seine fisherman in the same area might run from 2,000 to 10,000 fish respectively. The discrimination against all fishermen, natives and whites alike, resulting from the Secretary's 1959 regulation, creates social problems for the state which it is powerless to remedy if the Secretary's claimed right is upheld. The intention to retain such a power over the basic industry of the state was not intimated in the wording of the Alaska Statehood Act, much less described. Such a power has never been reserved as to any other state admitted into the Union as far as this court is aware. The fisheries of Alaska, although pitifully depleted, are still its basic industry. The economy of the entire state is affected, in one degree or another, by the plentitude of the salmon in a given season. The preservation of this natural resource is vital to the state and of great importance to the nation as a whole.' Metlakatla Indian Community v. Egan, Alaska, 362 P.2d 901, 915.
49
The fish trap is 'efficient,'3 and adjective which, by conservation standards, means that it is 'destructive.' As Senator Gruening has said, 'Its economic and social aspects have been under unceasing attack by virtually all fishermen, by cannery men who do not own or control traps and have to depend on other types of gear for their salmon, and by the Alaska public generally.' Gruening, The State of Alaska (1954), pp. 170—171.
50
Moreover, the fish trap is not a selective device, taking only one type of fish. It catches everything that swims; and fish that are not 'in season' are as irretrievably lost as are those in which the fishermen have the greatest interest.
51
We should not allow such a destructive device4 to be employed, absent a claim of legal right or a showing of imperative need. As I have said, no such right exists subsequent to our unanimous decision of March 5, 1962. It is, of course, provided in 28 U.S.C. § 2106, 28 U.S.C.A. § 2106 that in disposing of cases here for review we may not only 'affirm, modify, vacate, set aside or reverse, but also 'require such further proceedings to be had as may be just under the circumstances.' But we have no reason for concluding that it would be unjust to turn these Indians to fishing with gill nets or hand lines like everyone else. All we have before us is a motion made in October 1961 to expedite a hearing in these cases. In that motion it is said:
52
'The 1962 fishing season in Alaska begins in July, 1962. To prepare for this fishing season, Appellants must commit large sums of money for materials and supplies, including wire, netting, and cannery equipment. A large portion of these materials must be ordered not later than January, 1962. If Appellants' right to fish with traps were not to be upheld, their investment would be wasted. Conversely, if Appellants' right to fish with traps is upheld, Appellants will be unable to fish unless substantial sums of money are committed early in 1962.'
53
Whether any sums have in fact been committed to the construction of these nefarious fish traps we do not know. Why these Indians cannot fish in the manner of all other fishermen is not apparent. Since the fishing season starts in July, they have four months from the date of our decision to prepare for it. What problems, if any, they may have in fishing without traps, we do not know. They have asked for no stay at this juncture of the litigation. We act gratuitously and without any knowledge of the actual facts. We in effect dispense to this group who have no legal rights a largesse, as if we sat as a Commission on Indian Affairs, giving a part of the public domain to this favored few.
54
Those who know the story of the decline of the salmon5 can only look with concern on any action that further depletes the supply of this choice national asset. Severe human hardship may result from the decision we handed down on March 5, 1962. But if that is true, we should require that it be shown. The disposition of these cases four months before the 1962 fishing season starts gives ample notice that new ways of earning a livelihood must be found other than by lazy man's device of the fish trap.6
1
In 1948 a statehood bill requiring disclaimer of 'all lands * * * owned or held by any * * * natives, the right or title to which shall have been acquired through or from the United States or any prior sovereignty,' was favorably reported with this explanation:
'As proposed to be amended, this paragraph would preserve all existing valid native property rights in Alaska, including those derived from use or occupancy, together with all existing authority of the Congress to provide for the determination, perfection or relinquishment of native property rights in Alaska. It would neither add to nor subtract from such rights and such authority, but would simply maintain the status quo.' H.R.Rep.No.1731, 80th Cong., 2d Sess. 15 (1948). To the same effect, see H.R.Rep.No.255, 81st Cong., 1st Sess. 13 (1949).
2
Fisher permitted a territorial tax on a railway through Indian country, and one basis for the holding was that here discussed. The alternative ground was that the railway right-of-way had been withdrawn from the reservation, as was held in Maricopa & Phoenix R. Co. v. Arizona Territory, 156 U.S. 347, 15 S.Ct. 391, 39 L.Ed. 447.
1
The salmon trap is described by the Alaska Supreme Court as follows:
'A trap consists of tall stakes or mechanically driven piling extending from the shore to varying distances seaward, depending on the depth of the water. Wire or webbing is stretched across the stakes or piling from the shore to the seaward end and from the ocean bottom upward to a point above high water. Located at the seaward end is an extended wing or hook and an opening into the heart and pot. When the webbing is on the ocean bottom fish cannot pass around the trap at the shoreward end. One tendency of migrating fish is to parallel the shoreline and travel with the incoming tide. Fish stopped by the webbing of a trap will eventually follow it seaward in an attempt to by-pass the obstruction. The wing or hook is constructed so as to discourage by-passing and divert the fish into the heart and pot where they remain. With some variations in construction, floating traps adapted to deep water are commonly used and are highly productive.' Metlakatla Indian Community v. Egan, Alaska, 362 P.2d 901, 903.
2
See Federal Indian Law (Dept. of Interior, 1958), p. 963.
3
Those who defend the fish trap rate it as being a degree better than the purse seine. This is because the purse seine is movable and 'difficult to keep track of by the inspectors,' while the fish trap is stationary and can be readily inspected. See Hearings before Subcommittee, Senate Committee on Fisheries, on S. 5856, 62d Cong., 2d Sess., pp. 458—459.
4
Those who defend the fish trap are quick to add 'provided the trap has no jigger.' Hearings, supra, note 3, at 458. Senator Gruening describes the 'jigger':
'The 'jigger' is a lateral extension of the trap, curved or hooked, extending away from the wall of the outer 'heart' into the direction from which the salmon come. It makes avoidance of the trap toward which at that point the salmon are heading almost impossible.' Gruening, The State of Alaska (1954), p. 170.
It is significant that the Regulation under which these Indians are now allowed to fish during the 1962 season do not bar the 'jigger' (see 25 CFR § 88.3), though the Territorial Legislature as early as 1913 had banned it. See Gruening, op. cit., supra, at 169.
5
James Wickersham, delegate in Congress from Alaska, testified in 1914 as to the start of the depletion of the salmon:
'I want to call the attention of the committee to one stream which has been depleted in California, and that is the Sacramento River. The Sacramento River was one of the first rivers upon which canners put up salmon. In 1864 the first canned salmon were packed in California on the Sacramento River. In 1882 there were 200,000 cases of canned salmon put out from the Sacramento River—48 pounds to the case, making a total of 4,800 tons of salmon canned during that year on the Sacramento River.
'Then it began to decrease, and it went down to 123,000; then to 90,000; then to 57,000; then to 31,000; then to 14,000; and finally in 1906 there were none put up on that river. For three or four years there were none put up, but in 1913 there were 950 cases put up on the Sacramento River. In short, that great salmon stream has been utterly destroyed and there are no fish there now, substantially.
'Of course, that situation resulted from several causes. It resulted from overfishing, and from putting barriers across the streams to catch the fish, and it resulted in part from mining. All these things are going to happen in Alaska. There is mining going on there now on many of these streams. All the obstacles that operated to bring about that evil in the Sacramento River will operate in Alaska as soon as they open up that country. As soon as that is done and they get to work in there, the streams there are going to be depleted.
'When the first Russians went to Kadiak Island, more than a century ago, they found the Karluk salmon stream surrounded by Indians. It was a great fishing spot. That stream has probably turned out more canned salmon than any other stream in Alaska. Dr. Evermann and all those who were acquainted with it say it was the greatest salmon stream in the world. I saw the fishing going on there in 1903. I know how it was done. They had at one side a great post set in the ground sufficient to hold the nets. The nets were put into big boats, and they were long nets, some of them half a mile long, I suppose, and they were carried out into the bay, and as they came around they were fastened to a rope on the shore, to which was attached a big engine, and when they got that far along the big engine pulled the nets for them. The number of fish which they caught in there is simply unbelievable, and they were pulled in by machinery. The men themselves were unable to handle big nets of that kind. They were able to handle the small nets, but when they got machinery handling the fish for them they soon destroyed that stream. Every fisherman in that region knows it is destroyed; knows that the greatest salmon stream in Alaska has been destroyed.' Hearings before House Committee on the Territories in H.R. 11740, 63d Cong., 2d Sess., pp. 45—46. For later discussions on the plight of the salmon of the Pacific, see Hearings before Merchant Marine and Fisheries Subcommittee, Senate Committee on Interstate and Foreign Commerce on S.Con.Res. 35, pt. I, and on S. 502, 86th Cong., 1st Sess.; Hearings before Senate Committee on Interstate and Foreign Commerce on S.Con.Res. 35, S. 2586 and S. 1420, pt. II, 86th Cong., 1st Sess.
The depletion of salmon from California to Alaska is notorious. See Dufresne, Troubled River, Field and Stream, July 1959, p. 27; Netboy, Salmon of the Pacific Northwest (1958); 1958, A Year of Surprise in Pacific Salmon Canning, Pacific Fisherman, Jan. 25, 1959, p. 81; id., Jan. 25, 1960, p. 53; Id., Jan. 25, 1961, pp. 13, 23; Van Fleet, The Vanishing Salmon, Atlantic, May 1961, pp. 48, 51:
'In my estimation, the former great wealth of the salmon fishery in California is doomed. In Oregon, the main runs are badly crippled but not entirely gone. In Washington, the runs are diminished along the coast and in the waters around Puget Sound, but careful husbandry could even bring about an increase. My advice to Alaska is to heed the lesson so well portrayed in the states to the south of it.'
The Hearings on S. 502, supra, are replete with examples of the impact on people and on the Alaska economy of the salmon depletion. This depletion also has a serious impact on wildlife. For an account of what a scarcity of salmon means to the brown bear population, see the Hearings on S. 502, supra, at 25—26.
6
'A trap fishes in the night when the man sleeps; it employs less men than other kinds of gear; it is a labor-saving device * * *.' Hearings on S. 5856, supra, note 3, at 389.
| 78
|
369 U.S. 95
82 S.Ct. 571.
7 L.Ed.2d 593
LOCAL 174, TEAMSTERS, CHAUKFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Petitioner,v.LUCAS FLOUR COMPANY.
No. 50.
Argued Nov. 7 and 8, 1961.
Decided March 5, 1962.
Francis Hoague, Seattle, Wash., for petitioner.
Stuart G. Oles, Seattle, Wash., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner and the respondent (which we shall call the union and the employer) were parties to a collective bargaining contract within the purview of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. The contract contained the following provisions, among others:
2
'ARTICLE II
3
'The Employer reserves the right to discharge any man in his employ if his work is not satisfactory.
4
'ARTICLE XIV
5
'Should any difference as to the true interpretation of this agreement arise, same shall be submitted to a Board of Arbitration of two members, one representing the firm, and one representing the Union. If said members cannot agree, a third member, who must be a disinterested party shall be selected, and the decision of the said Board of Arbitration shall be binding. It is further agreed by both parties hereto that during such arbitration, there shall be no suspension of work.
6
'Should any difference arise between the employer and the employee, same shall be submitted to arbitration by both parties. Failing to agree, they shall mutually appoint a third person whose decision shall be final and binding.' In May of 1958 an employee named Welsch was discharged by the employer after he had damaged a new fork-lift truck by running it off a loading platform and onto some railroad tracks. When a business agent of the union protested, he was told by a representative of the employer that Welsch had been discharged because of unsatisfactory work. The union thereupon called a strike to force the employer to rehire Welsch. The strike lasted eight days.1 After the strike was over, the issue of Welsch's discharge was submitted to arbitration. Some five months later the Board of Arbitration rendered a decision, ruling that Welsch's work had been unsatisfactory, that his unsatisfactory work had been the reason for his discharge, and that he was not entitled to reinstatement as an employee.
7
In the meantime, the employer had brought this suit against the union in the Superior Court of King County, Washington, asking damages for business losses caused by the strike. After a trial that court entered a judgment in favor of the employer in the amount of $6,501.60.2 On appeal the judgment was affirmed by Department One of the Supreme Court of Washington. 57 Wash.2d 95, 356 P.2d 1. The reviewing court held that the pre-emption doctrine of San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, did not deprive it of jurisdiction over the controversy. The court further held that § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, 29 U.S.C.A. § 185, could not 'reasonably be interpreted as pre-empting state jurisdiction, or as affecting it by limiting the substantive law to be applied.' 57 Wash.2d at 102, 356 P.2d at 5. Expressly applying principles of state law, the court reasoned that the strike was a violation of the collective bargaining contract, because it was an attempt to coerce the employer to forego his contractual right to discharge an employee for unsatisfactory work.3 We granted certiorari to consider questions of federal labor law which this case presents. 365 U.S. 868, 81 S.Ct. 902, 5 L.Ed.2d 859.
8
We note at the outset a question as to our jurisdiction. Although the judgment before us has been certified as that of the Supreme Court of Washington, this case was actually heard and decided by Department One of that court, consisting of five of the nine members of the full court. Since the union could have filed a petition for rehearing en banc but did not do so, the argument is made that the judgment before us was not 'rendered by the highest court of a State in which a decision could be had,' and that the judgment is one we therefore have no power to review. 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. This argument primarily rests upon Gorman v. Washington University, 316 U.S. 98, 62 S.Ct. 962, 86 L.Ed. 1300, which held that, in view of the structure of Missouri's judicial system, a separate division of the Supreme Court of that State was not the highest state court in which a decision of a federal question could be had.4 It is evident, however, that the law governing rehearings in the Supreme Court of Washington is quite unlike the particularized provisions of Missouri law which led this Court to dismiss the writ in Gorman.
9
As the opinion in Gorman pointed out, the Constitution of the State of Missouri expressly conferred the right to an en banc rehearing by the Supreme Court of Missouri in any case originally decided by a division of the court in which a federal question was involved. It was this provision of the state constitution which was the basis for the conclusion in Gorman that the State of Missouri did not regard a decision by a division of the court as the final step in the state appellate process in a case involving a federal question. '(T)he constitution of Missouri,' it was said, 'has thus provided in this class of cases for review of the judgment of a division * * *.' 316 U.S. at 100, 62 S.Ct. at 963.
10
By contrast, a rehearing en banc before the Supreme Court of Washington is not granted as a matter of right. The Constitution and statutes of the State of Washington authorize its Supreme Court to sit in two Departments, each of which is empowered 'to hear and determine causes, and all questions arising therein.'5 Cases coming before the court may be assigned to a Department or to the court en banc at the discretion of the Chief Justice and a specified number of other members of the court.6 The state law further provides that the decision of a Department becomes a final judgment of the Supreme Court of Washington, unless within 30 days a petition for rehearing has been filed, or a rehearing has been ordered on the court's own initiative.7
11
We can discern in Washington's system no indication that the decision in the present case, rendered unanimously by a majority of the judges of the Supreme Court of Washington, was other than the final word of the State's final court.8 This case is thus properly before us, and we turn to the issues which it presents.
12
One of those issues—whether § 301(a) of the Labor Management Relations Act of 1947 deprives state courts of jurisdiction over litigation such as this—we have decided this Term in Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483. For the reasons stated in our opinion in that case, we hold that the Washington Supreme Court was correct in ruling that it had jurisdiction over this controversy.9 There remain for consideration two other issues, one of them implicated but not specifically decided in Dowd Box. Was the Washington court free, as it thought, to decide this controversy within the limited horizon of its local law? If not, does applicable federal law require a result in this case different from that reached by the state court?
13
In Dowd Box we proceeded upon the hypothesis that state courts would apply federal law in exercising jurisdiction over litigation within the purview of § 301(a), although in that case there was no claim of any variance in relevant legal principles as between the federal law and that of Massachusetts. In the present case, by contrast, the Washington court held that there was nothing in § 301 'limiting the substantive law to be applied,' and the court accordingly proceeded to dispose of this litigation exclusively in terms of local contract law. The union insists that the case was one to be decided by reference to federal law, and that under applicable principles of national labor law the strike was not a violation of the collective bargaining contract. We hold that in a case such as this, incompatible doctrines of local law must give way to principles of federal labor law.10 We further hold, however, that application of such principles to this case leads to affirmance of the judgment before us.
14
It was apparently the theory of the Washington court, that, although Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, requires the federal courts to fashion, from the policy of our national labor laws, a body of federal law for the enforcement of collective bargaining agreements, nonetheless, the courts of the States remain free to apply individualized local rules when called upon to enforce such agreements. This view cannot be accepted. The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute. Comprehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy.
15
More important, the subject matter of § 301(a) 'is peculiarly one that calls for uniform law.' Pennsylvania R. Co. v. Public Service Comm., 250 U.S. 566, 569, 40 S.Ct. 36, 37, 64 L.Ed. 1142; see Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 167—169, 62 S.Ct. 491, 501—503, 86 L.Ed. 754. The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation.11 Indeed, the existence of possibly conflicting legal concepts might substantially impede the parties' willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes.
16
The importance of the area which would be affected by separate systems of substantive law makes the need for a single body of federal law particularly compelling. The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy. With due regard to the many factors which bear upon competing state and federal interests in this area, California v. Zook, 336 U.S. 725, 730—731, 69 S.Ct. 841, 843—844, 93 L.Ed. 1005; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230—231, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, we cannot but conclude that in enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules.
17
Whether, as a matter of federal law, the strike which the union called was a violation of the collective bargaining contract is thus the ultimate issue which this case presents. It is argued that there could be no violation in the absence of a no-strike clause in the contract explicitly covering the subject of the dispute over which the strike was called. We disagree.
18
The collective bargaining contract expressly imposed upon both parties the duty of submitting the dispute in question to final and binding arbitration.12 In a consistent course of decisions the Courts of Appeals of at least five Federal Circuits have held that a strike to settle a dispute which a collective bargaining agreement provides shall be settled exclusively and finally by compulsory arbitration constitutes a violation of the agreement.13 The National Labor Relations Board has reached the same conclusion. W. L. Mead, Inc., 113 N.L.R.B. 1040. We approve that doctrine.14 To hold otherwise would obviously do violence to accepted principles of traditional contract law. Even more in point, a contrary view would be completely at odds with the basic policy of national labor legislation to promote the arbitral process as a substitute for economic warfare. See United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409.
19
What has been said is not to suggest that a no-strike agreement is to be implied beyond the area which it has been agreed will be exclusively covered by compulsory terminal arbitration. Nor is it to suggest that there may not arise problems in specific cases as to whether compulsory and binding arbitration has been agreed upon, and, if so, as to what disputes have been made arbitrable.15 But no such problems are present in this case. The grievance over which the union struck was, as it concedes, one which it had expressly agreed to settle by submission to final and binding arbitration proceedings. The strike which it called was a violation of that contractual obligation.
20
Affirmed.
21
Mr. Justice BLACK, dissenting.
22
The petitioner local union and the respondent company entered into a written collective bargaining agreement containing an express provision for the arbitration of disputes growing out of differences as to the proper application of the agreement in the following terms:
23
'Should any difference arise between the employer and the employee, same shall be submitted to arbitration by both parties. Failing to agree, they shall mutually appoint a third person whose decision shall be final and binding.'
24
The Court now finds—out of clear air, so far as I can see that the union, without saying so in the agreement, not only agreed to arbitrate such differences, but also promised that there would be no strike while arbitration of a dispute was pending under this provision. And on the basis of its 'discovery' of this additional unwritten promise by the union, the Court upholds a judgment awarding the company substantial damages for a strike in breach of contract.
25
That the Court's decision actually vacates and amends the contract that the parties themselves had made and signed is shown, I think, byu the very face of that original contract. The arbitration provision covering disputes growing out of the application of the contract immediately follows another quite different arbitration provision—one covering disputes 'as to the true interpretation of this agreement' in the following terms:
26
'Should any difference as to the true interpretation of this agreement arise, same shall be submitted to a Board of Arbitration of two members, one representing the firm, and one representing the Union. If said members cannot agree, a third member, who must be a disinterested party shall be selected, and the decision of the said Board of Arbitration shall be binding. It is further agreed by both parties hereto that during such arbitration, there shall be no suspension of work.' (Emphasis supplied.)
27
In view of the fact that this latter provision contains an explicit promise by the union 'that during such arbitration, there shall be no suspension of work,' it seems to me plain that the parties to this contract, knowing how to write a provision binding a union not to strike, deliberately included a no-strike clause with regard to disputes over broad questions of contractual interpretation and deliberately excluded such a clause with regard to the essentially factual disputes arising out of the application of the contract in particular instances. And there is not a word anywhere else in this agreement which indicates that this perfectly sensible contractual framework for handling these two different kinds of disputes was not intended to operate in the precise manner dictated by the express language of the two arbitration provisions.
28
The defense offered for the Court's rewriting of the contract which the parties themselves made is that to allow the parties' own contract to stand 'would obviously do violence to accepted principles of traditional contract law' and 'be completely at odds with the basic policy of national labor legislation to promote the arbitral process.' I had supposed, however—though evidently the Court thinks otherwise—that the job of courts enforcing contracts was to give legal effect to what the contracting parties actually agree to do, not to what courts think they ought to do. In any case, I have been unable to find any accepted principle of contract law—traditional or otherwise—that permits courts to change completely the nature of a contract by adding new promises that the parties themselves refused to make in order that the new court-made contract might better fit into whatever social, economic, or legal policies the courts believe to be so important that they should have been taken out of the realm of voluntary contract by the legislative body and furthered by compulsory legislation.
29
The mere fact that the dispute which brought about this strike was subject to 'final and binding' arbitration under this contract certainly does not justify the conclusion that the union relinquished its right to strike in support of its position on that dispute. The issue here involves, not the nature of the arbitration proceeding, but the question of whether the union, by agreeing to arbitrate, has given up all other separate and distinct methods of getting its way. Surely, no one would suggest that a provision for final and binding arbitration would preclude a union from attempting to persuade an employer to forego action the union was against, even where that action was fully within the emloyer's rights under the contract. The same principle supports the right of the union to strike in such a situation for historically, and as was recognized in both the Wagner and Taft-Hartley Acts, the strike has been the unions' most important weapon of persuasion. To say that the right to strike is inconsistent with the contractual duty to arbitrate sounds like a dull echo of the argument which used to be so popular that the right to strike was inconsistent with the contractual duty to work—an argument which frequently went so far as to say that strikes are inconsistent with both the common law and the Constitution.
30
The additional burden placed upon the union by the Court's writing into the agreement here a promise not to strike is certainly not a matter of minor interest to this employer or to the union. The history of industrial relations in this country emphasizes the great importance to unions of the right to strike as well as an understandable desire on the part of employers to avoid such work stoppages. Both parties to collective bargaining discussions have much at stake as to whether there will be a no-strike clause in any resulting agreement. It is difficult to believe that the desire of employers to get such a promise and the desire of the union to avoid giving it are matters which are not constantly in the minds of those who negotiate these contracts. In such a setting, to hold—on the basis of no evidence whatever—that a union, without knowing it, impliedly surrendered the right to strike by virtue of 'traditional contract law' or anything else is to me just fiction. It took more than 50 years for unions to have written into federal legislation the principle that they have a right to strike. I cannot understand how anyone familiar with that history can allow that legislatively recognized right to be undercut on the basis of the attenuated implications the Court uses here.
31
I do not mean to suggest that an implied contractual promise cannot sometimes be found where there are facts and circumstances sufficient to warrant the conclusion that such was the intention of the parties. But there is no factual basis for such a conclusion in this case and the Court does not even claim to the contrary. The implication of a no-strike clause which the Court purports to find here—an implication completely at war with the language the parties used in making this contract as well as with the normal understanding of the negotiation process by which such contracts are made—has not been supported by so much as one scrap of evidence in this record. The implication found by the Court thus flows neither from the contract itself nor, so far as this record shows, from the intention of the parties. In my judgment, an 'implication' of that nature would better be described as a rigid rule of law that an agreement to arbitrate has precisely the same effect as an agreement not to strike—a rule of law which introduces revolutionary doctrine into the field of collective bargaining.
32
I agree that the Taft-Hartley Act shows a congressional purpose to treat collective bargaining contracts and agreements for arbitration in them as one important way of insuring stability in industrial production and labor relations. But the fact that we may agree, as I do, that these settlements by arbitration are desirable is no excuse whatever for imposing such 'contracts,' either to compel arbitration or to forbid striking, upon unwilling parties. That approach is certainly contrary to the industrial and labor philosophy of the Taft-Hartley Act. Whatever else may be said about that Act, it seems plain that it was enacted on the view that the best way to bring about industrial peace was through voluntary, not compelled, labor agreements. Section 301 is torn from its roots when it is held to require the sort of compulsory arbitration imposed by this decision. I would reverse this case and relegate this controversy to the forum in which it belongs—the collective bargaining table.
1
The strike was terminated by a temporary injunction issued by the state court.
2
The amount of damages is not in issue here.
3
The court noted that the unreported memorandum opinion of the trial judge indicated a theory of liability based upon tort, rather than contract, liability. The appellate court said, however: 'From the pleadings, the theory is established that the respondent was injured by the appellant's breach of contract and this theory is clearly supported by the record. Therefore, the rule that the judgment of the trial court will be sustained on any theory established by the pleadings and supported by the proof is applicable.' 57 Wash.2d at 103, 356 P.2d at 6.
4
See also Osment v. Pitcairn, 317 U.S. 587, 63 S.Ct. 21, 87 L.Ed. 481.
5
Article IV, § 2 of the state constitution provides, in pertinent part, 'The legislature may increase the number of judges of the supreme court from time to time and may provide for separate departments of said court.'
Revised Code of Washington, § 2.04.120, provides:
'Two departments—Quorum. There shall be two departments of the supreme court, denominated respectively department one and department two. The chief justice shall assign four of the associate judges to each department and such assignment may be changed by him from time to time: Provided, That the associate judges shall be competent to sit in either department and may interchange with one another by agreement among themselves, or if no such agreement be made, as ordered by the chief justice. The chief justice may sit in either department and shall preside when so sitting, but the judges assigned to each department shall select one of their number as presiding judge. Each of the departments shall have the power to hear and determine causes, and all questions arising therein, subject to the provisions in relation to the court en banc. The presence of three judges shall be necessary to transact any business in either of the departments, except such as may be done at chambers, but one or more of the judges may from time to time adjourn to the same effect as if all were present, and a concurrence of three judges shall be necessary to pronounce a decision in each department: Provided, That if three do not concur, the cause shall be reheard in the same department or transmitted to the other department, or to the court en banc.'
6
Revised Code of Washington, § 2.04.150, provides:
'Apportionment of business—En banc hearings. The chief justice shall from time to time apportion the business to the departments, and may, in his discretion, before a decision is pronounced, order any cause pending before the court to be heard and determined by the court en banc. When a cause has been allotted to one of the departments and a decision pronounced therein, the chief justice, together with any two associate judges, may order such cause to be heard and decided by the court en banc. Any four judges may, either before or after decision by a department, order a cause to be heard en banc.'
7
Revised Code of Washington, § 2.04.160, provides:
'Finality of departmental decision—Rehearings. The decision of a department, except in cases otherwise ordered as hereinafter provided, shall not become final until thirty days after the filing thereof, during which period a petition for rehearing, or for a hearing en banc, may be filed, the filing of either of which, except as hereinafter otherwise provided, shall have the effect of suspending such decision until the same shall have been disposed of. If no such petition be filed the decision of a department shall become final thirty days from the date of its filing, unless during such thirty-day period an order for a hearing en banc shall have been made: * * *. Whenever a decision shall become final, as herein provided, a judgment shall issue thereon.'
8
See Market Street R. Co. v. Railroad Comm., 324 U.S. 548, 551—552, 65 S.Ct. 770, 772—773, 89 L.Ed. 1171. In recent years we have, without challenge, reviewed on their merits several cases decided by a Department of the Washington Supreme Court in which no petition for rehearing en banc had been filed. See, e.g., McGrath v. Rhay, 364 U.S. 279, 80 S.Ct. 1609, 4 L.Ed.2d 1719; Ross v. Schneckloth, 357 U.S. 575, 78 S.Ct. 1387, 2 L.Ed.2d 1547; United States v. Carroll Construction Co., 346 U.S. 802, 74 S.Ct. 22, 98 L.Ed. 333.
9
Since this was a suit for violation of a collective bargaining contract within the purview of § 301(a) of th eLabor Management Relations Act of 1947, the pre-emptive doctrine of cases such as San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, based upon the exclusive jurisdiction of the National Labor Relations Board, is not relevant. See United Steelworkers of America, Local 4264 v. New Park Mining Co., 273 F.2d 352 (C.A.10th Cir.); Independent Petroleum Workers v. Esso Standard Oil Co., 235 F.2d 401 (C.A.3d Cir.); see generally Lodge No. 12, District No. 37, Int'l Ass'n of Machinists v. Cameron Iron Works, Inc., 257 F.2d 467 (C.A.5th Cir.); Plumbers & Steamfitters Union, Local 598 v. Dillion, 255 F.2d 820 (C.A.9th Cir.); International Union of Operating Engineers, Local 181 v. Dahlem Const. Co., 193 F.2d 470 (C.A.6th Cir.). As pointed out in Charles Dowd Box Co. v. Courtney, 368 U.S., at 513, 82 S.Ct., at 526, Congress 'deliberately chose to leave the enforcement of collective agreements 'to the usual processes of the law." See also H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. p. 52, U.S.Code Cong.Service 1947, p. 1135. It is, of course, true that conduct which is a violation of a contractual obligation may also be conduct constituting an unfair labor practice, and what has been said is not to imply that enforcement by a court of a contract obligation affects the jurisdiction of the N.L.R.B. to remedy unfair labor practices, as such. See generally Dunau, Contractual Prohibition of Unfair Labor Practices: Jurisdictional Problems, 57 Col.L.Rev. 52.
10
Of the many state courts which have assumed jurisdiction over suits involving contracts subject to § 301, few have explicitly considered the problem of state versus federal law. McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal.2d 45, 60, 315 P.2d 322, 330, held that federal law must govern. Accord: Local Lodge No. 774, Int'l Ass'n of Machinists v. Cessna Aircraft Co., 186 Kan. 569, 352 P.2d 420; Harbison-Walker Refractories Co. v. United Brick and Clay Workers, Local 702, 339 S.W.2d 933, 935—936 (Ky.Ct.App.). Other courts have found it unnecessary to decide the question, because they found no conflict between state and federal law on the issues presented. Karcz v. Luther Mfg. Co., 338 Mass. 313, 317, 155 N.E.2d 441, 444; Springer v. Powder Power Tool Corp., 220 Or. 102, 106—107, 348 P.2d 1112, 1114; Clark v. Hein-Werner Corp., 8 Wis.2d 264, 277, 99 N.W.2d 132, 100 N.W.2d 317, 318 (on motion for rehearing). It bears noting, however, that these courts and others, e.g., Connecticut Co. v. Division 425, etc., Street, Electric Railway Employees, 147 Conn. 608, 622—623, 164 A.2d 413, 420, have carefully considered applicable federal precedents in resolving the litigation before them.
11
As one commentator has said: 'Words in any legal document are ambiguous, but the body of law which grows up in an area through decision helps to dispel this ambiguity. The existence of two bodies of law which cannot be accommodated by any conflict-of-laws rule, however, is calculated to aggravate rather than to alleviate the situation.' Wellington, Labor and the Federal System, 26 U. of Chi.L.Rev. 542, 557.
12
It appears that this would be true whether the dispute be considered as a 'difference as to the true interpretation of this agreement' or as a difference 'between the employer and the employee' under Article XIV of the contract. See 369 U.S., p. 96, 82 S.Ct., p. 573, supra. The union not only now concedes that the dispute as to Welsch's discharge was subject to final and binding arbitration, but, indeed, after the strike, the dispute was § arbitrated.
13
See International Brotherhood of Teamsters, etc., Union, Local 25 v. W. L. Mead, Inc., 230 F.2d 576, 583—584 (C.A.1st Cir.); United Construction Workers v. Haislip Baking Co., 223 F.2d 872, 876—877 (C.A.4th Cir.); National Labor Relations Board v. Dorsey, Trailers, Inc., 179 F.2d 589, 592 (C.A.5th Cir.); Lewis v. Benedict Coal Corp., 259 F.2d 346, 351 (C.A.6th Cir.); National Labor Relations Board v. Sunset Minerals, 211 F.2d 224, 226 (C.A.9th Cir.).
14
Deciding the case as we do upon this explicit ground, we do not adopt the reasoning of the Washington court. Insofar as the language of that court's opinion is susceptible to the construction that a strike during the term of a collective bargaining agreement is ipso facto a violation of the agreement, we expressly reject it.
15
With respect to such problems, compare International Union, United Mine Workers of America v. National Labor Relations Board, 103 U.S.App.D.C. 207, 257 F.2d 211, with Lewis v. Benedict Coal Corp., 6 Cir., 259 F.2d 346 (affirmed on this question by an equally divided Court, 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442), for differing interpretations of an identical contract.
| 67
|
369 U.S. 84
82 S.Ct. 531
7 L.Ed.2d 585
Thomas N. GRIGGS, Petitioner,v.COUNTY OF ALLEGHENY, PENNSYLVANIA.
No. 81.
Argued Jan. 16, 1962.
Decided March 5, 1962.
Rehearing Denied April 16, 1962.
See 369 U.S. 857, 82 S.Ct. 931.
William A. Blair, Pittsburgh, Pa., for petitioner.
Maurice Louik, Pittsburgh, Pa., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case is here on a petition for a writ of certiorari to the Supreme Court of Pennsylvania which we granted (366 U.S. 943, 81 S.Ct. 1672, 6 L.Ed.2d 854) because its decision (402 Pa. 411, 168 A.2d 123) seemed to be in conflict with United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. The question is whether respondent has taken an air easement over petitioner's property for which it must pay just compensation as required by the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 41 L.Ed. 979. The Court of Common Pleas, pursuant to customary Pennsylvania procedure, appointed a Board of Viewers to determine whether there had been a 'taking' and, if so, the amount of compensation due. The Board of Viewers met upon the property; it held a hearing, and in its report found that there had been a 'taking' by respondent of an air easement over petitioner's property and that the compensation payable (damages suffered) was $12,690. The Court of Common Pleas dismissed the exceptions of each party to the Board's report. On appeal, the Supreme Court of Pennsylvania decided, by a divided vote, that if there were a 'taking' in the constitutional sense, the respondent was not liable.
2
Respondent owns and maintains the Greater Pittsburgh Airport on land which it purchased to provide airport and air-transport facilities. The airport was designed for public use in conformity with the rules and regulations of the Civil Aeronautics Administration within the scope of the National Airport Plan provided for in 49 U.S.C. § 1101 et seq., 49 U.S.C.A. § 1101 et seq. By this Act the federal Administrator is authorized and directed to prepare and continually revise a 'national plan for the development of public airports.' § 1102(a). For this purpose he is authorized to make grants to 'sponsors' for airport development. §§ 1103, 1104. Provision is made for apportionment of grants for this purpose among the States. § 1105. The applications for projects must follow the standards prescribed by the Administrator. § 1108.
3
It is provided in § 1108(d) that: 'No project shall be approved by the Administrator with respect to any airport unless a public agency holds good title, satisfactory to the Administrator, to the landing area of such airport or the site therefor, or gives assurance satisfactory to the Administrator that such title will be acquired.' The United States agrees to share from 50% to 75% of the 'allowable project costs,' depending, so far as material here, on the class and location of the airport. § 1109.
4
Allowable costs payable by the Federal Government include 'costs of acquiring land or interests therein or easements through or other interests in air space * * *.' § 1112(a)(2).
5
Respondent executed three agreements with the Administrator of Civil Aeronautics in which it agreed, among other things, to abide by and adhere to the Rules and Regulations of C.A.A. and to 'maintain a master plan of the airport,' including 'approach areas.' It was provided that the 'airport approach standards to be followed in this connection shall be those established by the Administrator'; and it was also agreed that respondent 'will acquire such easements or other interests in lands and air space as may be necessary to perform the covenants of this paragraph.' The 'master plan' laid out and submitted by respondent included the required 'approach areas'; and that 'master plan' was approved. One 'approach area' was to the northeast runway. As designed and approved, it passed over petitioner's home which is 3,250 feet from the end of that runway. The elevation at the end of that runway is 1,150.50 feet above sea level; the door sill at petitioner's residence, 1,183.64 feet; the top of petitioner's chimney, 1,219.64 feet. The slope gradient of the approach area is as 40 is to 3,250 feet or 81 feet, which leaves a clearance of 11.36 feet between the bottom of the glide angle and petitioner's chimney.
6
The airlines that use the airport are lessees of respondent; and the leases give them, among other things, the right 'to land' and 'take off.' No flights were in violation of the regulations of C.A.A.; nor were any flights lower than necessary for a safe landing or take-off. The planes taking off from the northeast runway observed regular flight patterns ranging from 30 feet to 300 feet over petitioner's residence; and on let-down they were within 53 feet to 153 feet.
7
On take-off the noise of the planes is comparable 'to the noise of a riveting machine or steam hammer.' On the let-down the planes make a noise comparable 'to that of a noisy factory.' The Board of Viewers found that 'The low altitude flights over plaintiff's property caused the plaintiff and occupants of his property to become nervous and distraught, eventually causing their removal therefrom as undesirable and unbearable for their residential use.' Judge Bell, dissenting below, accurately summarized the uncontroverted facts as follows:
8
'Regular and almost continuous daily flights, often several minutes apart, have been made by a number of airlines directly over and very, very close to plaintiff's residence. During these flights it was often impossible for people in the house to converse or to talk on the telephone. The plaintiff and the members of his household (depending on the flight which in turn sometimes depended on the wind) were frequently unable to sleep even with ear plugs and sleeping pills; they would frequently be awakened by the flight and the noise of the planes; the windows of their home would frequently rattle and at times plaster fell down from the walls and ceilings; their health was affected and impaired, and they sometimes were compelled to sleep elsewhere. Moreover, their house was so close to the runways or path of glide that as the spokesman for the members of the Airlines Pilot Association admitted 'If we had engine failure we would have no course but to plow into your house." 402 Pa. 411, 422, 168 A.2d 123, 128—129.
9
We start with United States v. Causby, supra, which held that the United States by low flights of its military planes over a chicken farm made the property unusable for that purpose and that therefore there had been a 'taking', in the constitutional sense, of an air easement for which compensation must be made. At the time of the Causby case, Congress had placed the navigable airspace in the public domain, defining it as 'airspace above the minimum safe altitudes of flight prescribed' by the C.A.A. 44 Stat. 574. We held that the path of the glide or flight for landing or taking off was not the downward reach of the 'navigable airspace.' 328 U.S. at 264, 66 S.Ct. 1062. Following the decision in the Causby case, Congress redefined 'navigable airspace' to mean 'airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall include airspace needed to insure safety in take-off and landing of aircraft.' 72 Stat. 739, 49 U.S.C. § 1301(24), 49 U.S.C.A. § 1301(24). By the present regulations1 the 'minimum safe altitudes' within the meaning of the statute are defined, so far as relevant here, as heights of 500 feet or 1,000 feet, '(e)xcept where necessary for takeoff or landing.' But as we said in the Causby case, the use of land presupposes the use of some of the airspace above it. 328 U.S. at 264, 66 S.Ct. 1062. Otherwise no home could be built, no tree planted, no fence constructed, no chimney erected. An invasion of the 'superadjacent airspace' will often 'affect the use of the surface of the land itself.' 328 U.S. at 265, 66 S.Ct. at 1068.
10
It is argued that though there was a 'taking,' someone other than respondent was the taker—the airlines or the C.A.A. acting as an authorized representative of the United States. We think, however, that respondent, which was the promoter, owner, and lessor2 of the airport, was in these circumstances the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the C.A.A., where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority which decides to build an airport vel non, and where it is to be located. We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built. Nor did the Congress when it designed the legislation for a National Airport Plan. For, as we have already noted, Congress provided in 49 U.S.C. § 1109, 49 U.S.C.A. § 1109, for the payment to the owners of airports, whose plans were approved by the Administrator, of a share of 'the allowable project costs' including the 'costs of acquiring land or interests therein or easements through or other interests in air space.' § 1112(a)(2). A county that designed and constructed a bridge would not have a usable facility unless it had at least an easement over the land necessry for the approaches to the bridge. Why should one who designs, constructs, and uses an airport be in a more favorable position so far as the Fourteenth Amendment is concerned? That the instant 'taking' was 'for public use' is not debatable. For respondent agreed with the C.A.A. that it would operate the airport 'for the use and benefit of the public,' that it would operate it 'on fair and reasonable terms and without unjust discrimination,' and that it would not allow any carrier to acquire 'any exclusive right' to its use.
11
The glide path for the northeast runway is as necessary for the operation of the airport as is a surface right of way for operation of a bridge, or as is the land for the operation of a dam. See United States v. Virginia Electric Co., 365 U.S. 624, 630, 81 S.Ct. 784, 5 L.Ed.2d 838. As stated by the Supreme Court of Washington in Ackerman v. Port of Seattle, 55 Wash.2d 400, 401, 413, 348 P.2d 664, 671, 77 A.L.R.2d 1344, '* * * an adequate approach way is as necessary a part of an airport as is the ground on which the airstrip, itself, is constructed * * *.' Without the 'approach areas,' an airport is indeed not operable. Respondent in designing it had to acquire some private property. Our conclusion is that by constitutional standards it did not acquire enough.
12
Reversed.
13
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting.
14
In United States v. Causby,1 the Court held that by flying its military aircraft frequently on low landing and takeoff flights over Causby's chicken farm the United States had so disturbed the peace of the occupants and so frightened the chickens that it had 'taken' a flight easement from Causby for which it was required to pay 'just compensation' under the Fifth Amendment. Today the Court holds that similar low landing and take-off flights, making petitioner Griggs' property 'undesirable and unbearable for * * * residential use,' constitute a 'taking' of airspace over Griggs' property—not, however, by the owner and operator of the planes as in Causby, but by Allegheny County, the owner and operator of the Greater Pittsburgh Airport to and from which the planes fly. Although I dissented in Causby because I did not believe that the individual aircraft flights 'took' property in the constitutional sense merely by going over it and because I believed that the complexities of adjusting atmospheric property rights to the air age could best be handled by Congress, I agree with the Court that the noise, vibrations and fear caused by constant and extremely low overflights in this case have so interfered with the use and enjoyment of petitioner's property as to amount to a 'taking' of it under the Causby holding. I cannot agree, however, that it was the County of Allegheny that did the 'taking.' I think that the United States, not the Greater Pittsburgh Airport, has 'taken' the airspace over Griggs' property necessary for flight.2 While the County did design the plan for the airport, including the arrangement of its takeoff and approach areas, in order to comply with federal requirements it did so under the supervision of and subject to the approval of the Civil Aeronautics Administrator of the United States.3
15
Congress has over the years adopted a comprehensive plan for national and international air commerce, regulating in minute detail virtually every aspect of air transit—from construction and planning of ground facilities to safety and methods of flight operations.4 As part of this overall scheme of development, Congress in 1938 declared that the United States has 'complete and exclusive national sovereignty in the air space above the United States'5 and that every citizen has 'a public right of freedom of transit in air commerce through the navigable air space of the United States.'6 Although in Causby the Court held that under the then existing laws and regulations the airspace used in landing and take-off was not part of the 'navigable airspace' as to which all have a right of free transit, Congress has since, in 1958, enacted a new law, as part of a regulatory scheme even more comprehensive than those before it, making it clear that the 'airspace needed to insure safety in take-off and landing of aircraft' is 'navigable airspace.'7 Thus Congress has not only appropriated the airspace necessary for planes to fly at high altitudes throughout the country but has also provided the low altitude airspace essential for those same planes to approach and take off from airports. These airspaces are so much under the control of the Federal Government that every take-off from and every landing at airports such as the Greater Pittsburgh Airport is made under the direct signal and supervisory control of some federal agent.8
16
In reaching its conclusion, however, the Court emphasizes the fact that highway bridges require approaches. Of course they do. But if the United States Highway Department purchases the approaches to a bridge, the bridge owner need not. The same is true where Congress has, as here, appropriated the airspace necessary to approach the Pittsburgh airport as well as all the other airports in the country. Despite this, however, the Court somehow finds a congressional intent to shift the burden of acquiring flight airspace to the local communities in 49 U.S.C. § 1112, 49 U.S.C.A. § 1112, which authorizes reimbursement to local communities for 'necessary' acquisitions of 'easements through or other interests in air space.' But this is no different from the bridge-approach argument. Merely because local communities might eventually be reimbursed for the acquisition of necessary easements does not mean that local communities must acquire easements that the United States has already acquired. And where Congress has already declared airspace free to all—a fact not denied by the Court—pretty clearly it need not again be acquired by an airport. The 'necessary' easements for which Congress authorized reimbursement in § 1112 were those 'easements through or other interests in air space' necessary for the clearing and protecting of 'aerial approaches' from physical 'airport hazards'9 a duty explicitly placed on the local communities by the statute (§ 1110) and by their contract with the Government. There is no such duty on the local community to acquire flight airspace. Having taken the airspace over Griggs' private property for a public use, it is the United States which owes just compensation.
17
The construction of the Greater Pittsburgh Airport was financed in large part by funds supplied by the United States as part of its plan to induce localities like Allegheny County to assist in setting up a national and international airtransportation system. The Court's imposition of liability on Allegheny County, however, goes a long way toward defeating that plan because of the greatly increased financial burdens (how great one can only guess) which will hereafter fall on all the cities and counties which til now have given or may hereafter give support to the national program. I do not believe that Congress ever intended any such frustration of its own purpose.
18
Nor do I believe that Congress intended the wholly inequitable and unjust saddling of the entire financial burden of this part of the national program on the people of local communities like Allegheny County. The planes that take off and land at the Greater Pittsburgh Airport wind their rapid way through space not for the peculiar benefit of the citizens of Allegheny County but as part of a great, reliable transportation system of immense advantage to the whole Nation in time of peace and war. Just as it would be unfair to require petitioner and others who suffer serious and peculiar injuries by reason of these transportation flights to bear an unfair proportion of the burdens of air commerce, so it would be unfair to make Allegheny County bear expenses wholly out of proportion to the advantages it can receive from the national transportation system. I can see no justification at all for throwing this monkey wrench into Congress' finely tuned national transit mechanism. I would affirm the state court's judgment holding that the County of Allegheny has not 'taken' petitioner's property.
1
Regulation 60.17, entitled 'Minimum safe altitudes, provides:
'Except when necessary for take-off or landing, no person shall operate an aircraft below the following altitudes:
'(a) Anywhere. An altitude which will permit, in the event of the failure of a power unit, an emergency landing without undue hazard to persons or property on the surface;
'(b) Over congested areas. Over the congested areas of cities, towns or settlements, or over an open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft. * * *
'(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In such event, the aircraft shall not be operated closer than 500 feet to any person, vessel, vehicle, or structure. * * *' (Emphasis supplied except in catch lines.) 14 C.F.R. § 60.17.
2
In circumstances more opaque than this we have held lessors to their constitutional obligations. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45.
1
328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206.
2
We are not called on to pass on any question of 'taking' under the Pennsylvania Constitution or laws.
3
60 Stat. 174—176, as amended, 49 U.S.C. §§ 1108, 1110, 49 U.S.C.A. §§ 1108, 1110. The duties of the Civil Aeronautics Administrator have since been transferred to the Federal Aviation Agency Administrator. 72 Stat. 806—807.
4
The Federal Aviation Agency Administrator is directed to prepare and maintain a 'national plan for the development of public airports in the United States' taking 'into account the needs of both air commerce and private flying, the probable technological developments in the science of aeronautics, (and) the probable growth and requirements of civil aeronautics.' 49 U.S.C. § 1102, 49 U.S.C.A. § 1102. The detailed features of the federal regulatory and development scheme are found in 49 U.S.C. cc. 14 (Federal-aid for Public Airport Development), 15 (International Aviation Facilities) and 20 (Federal Aviation Program).
5
52 Stat. 1028, 49 U.S.C. § 1508, 49 U.S.C.A. § 1508.
6
52 Stat. 980, 49 U.S.C. § 1304, 49 U.S.C.A. § 1304.
7
Section 101(24) of the Federal Aviation Act of 1958 provides: "Navigable airspace' means airspace above the minimum altitudes of flight prescribed by regulations issued under this Act, and shall include airspace needed to insure safety in take-off and landing of aircraft.' 72 Stat. 739, 49 U.S.C. § 1301(24), 49 U.S.C.A. § 1301(24).
8
14 CFR § 60.18. The Administrator of the Federal Aviation Agency is directed to control 'the use of the navigable airspace of the United States.' 49 U.S.C. § 1303(c), 49 U.S.C.A. § 1303(c).
9
The term 'airport hazard' means 'any structure or object of natural growth * * * or any use of land * * * which obstructs the air space * * * or is otherwise hazardous to * * * landing or taking off of aircraft.' 49 U.S.C. § 1101(a)(4), 49 U.S.C.A. § 1101(a)(4).
| 34
|
369 U.S. 45
82 S.Ct. 552
7 L.Ed.2d 562
METLAKATLA INDIAN COMMUNITY, ANNETTE ISLANDS RESERVE, Appellant,v.William A. EGAN, Governor of the State of Alaska, and the State of Alaska.
No. 2.
Argued Dec. 13 and 14, 1961.
Decided March 5, 1962.
Richard Schifter, Washington, D.C., for appellant.
Oscar H. Davis, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Avrum M. Gross, for appellee pro hac vice, by special leave of Court.
Ralph E. Moody, Anchorage, Alaska, for appellee.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is an appeal from a decision of the Supreme Court of the State of Alaska, 362 P.2d 901, affirming the denial of an injunction against interference by the State with appellant's use of fish traps in the Annette Islands of southeastern Alaska. Appellant rests its claim in part on regulations promulgated by the Secretary of the Interior whereby the Metlakatla Indian Community was accorded the right to erect and to operate salmon traps at four locations in waters surrounding the Annette Islands, which Congress set aside for its use in 1891. Alaska challenged this authorization by a state conservation law forbidding the use of salmon traps.
2
Long before the white man came to Alaska, the annual migrations of salmon from the sea into Alaska's rivers to spawn served as a food supply for the natives. Commercial salmon fishing has become vital for Alaska's economy, but its exploitation seriously threatened the resource even before the turn of the century. See Gruening, The State of Alaska (1954), pp. 75, 97. Congress in 1889, in 1896, in 1906, and again in 1924 enacted conservation measures, prohibiting any obstruction of waters to impede salmon migration, limiting the times and means of taking salmon and authorizing the appropriate department to impose further restrictions.1 When Alaska was established as a State, Congress withheld jurisdiction over her fisheries until she had made adequate provision for their administration.2
3
Equally with Congress, Alaska has been concerned with the evils of overexploitation. In particular she saw a menace in the fish trap, a labor-saving but costly device, which became in her eyes the symbol of exploitation of her resources by 'Stateside' colonialism. See Rogers, Alaska in Transition (1960), pp. 4—15; Gruening, supra, at pp. 392—407; Gruening, Let Us End American Colonialism (1955), reprinted at 103 Cong.Rec. 470—474. The fish trap, 'a formidable structure,' Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87, 39 S.Ct. 40, 63 L.Ed. 138, consists principally of a fence or netting stretched across or partly across a stream to obstruct the upstream progress of the salmon and turn the fish into the 'heart' or 'pot' of the trap, where they are imprisoned until removed. See Rogers, supra, at p. 7; Gruening, The State of Alaska, supra, at pp. 169—170. At one time there were about 700 salmon traps in operation in Alaska. The Secretary of the Interior felt that the fish trap's threat to conservation could be adequately dealt with by regulating the number of fish permitted to escape.3 Alaska vigorously opposed this. The Territorial Legislature several times sent memorials to Congress urging abolition of trap fishing.4 An ordinance to abolish all commercial traps was approved by Alaska voters along with the proposed State Constitution in 1956, and in early 1959 the first State Legislature turned this ordinance into the statute here under review.5
4
The Metlakatla Indians, some 800, led by a British missionary, moved from British Columbia to Alaska in 1887. In 1891 the Annette Islands, south of Ketchikan at the extreme lower end of the Alaskan archipelago, were 'set apart as a reservation' by Congress for the Metlakatlans and other Indians, 'to be held and used by them in common, under such rules and regulations, and subject to such restrictions, as may be prescribed from time to time by the Secretary of the Interior.' 26 Stat. 1095, 1101, 48 U.S.C. § 358, 48 U.S.C.A. § 358. In 1915 the Secretary issued regulations, 25 CFR (1939 ed.), pt. 1, establishing an elective council to make local ordinances for Metlakatla, and also permitting members of the Community to obtain permits for the use of salmon traps in waters adjacent to the Annette Islands. The next year, in furtherance of the Secretary's plan to establish a salmon cannery at Metlakatla, President Wilson by proclamation declared the waters within 3,000 feet of certain of these islands to be a part of the Metlakatla Reserve, to be used by the Indians as a source of supply for the intended cannery, 'under the general fisheries laws and regulations of the United States as administered by the Secretary of Commerce.' 39 Stat. 1777.6 In 1918, without reference to the proclamation, this Court upheld the right of the Metlakatlans to exclude others from the waters surrounding their islands on the ground that these waters were included within the original reservation by Congress. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138.
5
Ever since 1915, Metlakatla has operated fish traps with the consent of the Secretary of the Interior. Following the enactment of the State's fish-trap law in 1959, the Secretary in the exercise of his transitional power over Alaska fisheries banned all fish traps except those operated by Metlakatla and by other Indians involved in the companion case, Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573, 24 Fed.Reg. 2053, 2056, 2069 (1959). The following year, having relinquished general control of the fisheries, the Secretary again authorized Metlakatla to operate fish traps at four of eight specified locations, citing as authority the White Act, 43 Stat. 464, as amended, 48 U.S.C. §§ 221—228, 48 U.S.C.A. §§ 221—228, and § 4 of the Alaska Statehood Act, 72 Stat. 339, as amended by 73 Stat. 141, 48 U.S.C.A. preceding § 21. 25 CFR (1961 Supp.), pt. 88.7
6
With this background we reach the present controversy. In May, 1959, just before the salmon season began, the State warned Metlakatla and other Indians that she would enforce the fishtrap law against them. The threat was intensified when the State arrested members of other Indian communities and seized one fish trap. Suits were thereupon filed by Metlakatla and by the appellants in the companion case in the interim United States District Court for the District of Alaska, seeking an injunction against interference with their asserted federal rights to fish with traps. All complaints were dismissed, 174 F.Supp. 500. Appeal was brought to this Court, as the Supreme Court of Alaska had not yet been fully organized. Pending decision, Mr. Justice BRENNAN granted a stay of enforcement by the State, 80 S.Ct. 33, 4 L.Ed.2d 34. The Court assumed jurisdiction and continued the stay but remanded the case to the newly constituted State Supreme Court primarily for its disposition of matters of local law, 363 U.S. 555, 80 S.Ct. 1321, 4 L.Ed.2d 1397. That Court affirmed the District Court's dismissal, holding the fish-trap law applicable to Metlakatla and to the other appellants, and upholding its validity as so applied, 362 P.2d 901. From its judgment, the appeal is properly here under 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. We noted probable jurisdiction, 368 U.S. 886, 82 S.Ct. 137, 7 L.Ed.2d 86.
7
Several grounds of the decision below are now out of the case on concession of error by Alaska, but she firmly stands on the judgment in her favor. Metlakatla argues that it is immune from the fish-trap law because (1) state law cannot regulate Indian activities on Indian reservations; (2) the State cannot regulate a federal instrumentality; and (3) appellant has been authorized to operate traps by the Secretary of the Interior. The United States has supported Metlakatla as amicus curiae, see 362 U.S. 967, 80 S.Ct. 953.
8
The Indians of southeastern Alaska, who have very substantially adopted and been adopted by the white man's civilization, were never in the hostile and isolated position of many tribes in other States. As early as 1886 a federal judge, holding Alaskan Indians subject to the Thirteenth Amendment, denied that the principle of Indian national sovereignty enunciated in Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483, applied to them. In re Sah Quah, 31 F. 327 (D.Alaska). There were no Indian wars in Alaska, although on at least one occasion, see Gruening, The State of Alaska (1954), pp. 36—37, there were fears of an uprising. There was never an attempt in Alaska to isolate Indians on reservations. Very few were ever created, and the purpose of these, in contrast to many in other States, was not to confine the Indians for the protection of the white settlers but to safeguard the Indians against exploitation. Alaskan Indians are now voting citizens, some of whom occupy prominent public office in the state government. See United States v. Booth, 161 F.Supp. 269, 17 Alaska 561 (D.Alaska 1958); United States v. Libby, McNeil & Libby, 107 F.Supp. 697, 699, 14 Alaska 37, 41—42 (D.Alaska 1952). Metlakatlans, the State tells us, have always paid state taxes, in contrast to the practice described and prescribed for other reservations in The Kansas Indians, 5 Wall. 737, 18 L.Ed. 667, and it has always been assumed that the reservation is subject to state laws. United States v. Booth, supra, 161 F.Supp., at 270, 17 Alaska, at 563. Congress in 1936, 49 Stat. 1250, 48 U.S.C. § 358a, 48 U.S.C.A. § 358a, by authorizing the Secretary of the Interior to create Indian reservations of land reserved for Indian uses under 48 U.S.C. § 358, 48 U.S.C.A. § 358, seems to have believed that Metlakatla was no ordinary reservation, since Metlakatla alone is covered in § 358. Finally, in United States v. Booth, supra, the District Court for Alaska held that a crime comitted on the Metlakatla Reserve, before the extension of jurisdiction over Indian country to Alaska, see 369 U.S., p. 56, 82 S.Ct. p. 560, infra, was punishable under territorial laws, since for the reasons here outlined the Reserve was not 'Indian country' within the meaning of 18 U.S.C. §§ 1151—1153, 18 U.S.C.A. §§ 1151—1153.
9
The words 'set apart as a reservation,' appearing in the statute creating the Annette Islands Reserve, are substantially the same as used in numerous other statutory reservations. E.g., 13 Stat. 63 (Unita Valley, Utah); 13 Stat. 541, 559 (Colorado River); 18 Stat. 28 (Gros Ventre and others); 19 Stat. 28, 29 (Pawnee). None of these statutes made express provision for self-government or for state government. Some treaties, such as that with the Cherokees in 1828, 7 Stat. 311, expressly excluded state laws. Other treaties, however, while sometimes phrased in terms of a gift or assignment rather than a reservation of land, made no mention of state power. E.g., Treaty with the Shawnee Tribe, 1825, 7 Stat. 284; Treaty with the Potawatomies, 1837, 7 Stat. 532; Treaty with the New York Indians, 1838, 7 Stat. 550, 551; Treaty with the Sacs and Foxes, 1842, 7 Stat. 596. Later treaties 'set apart for the absolute and undisturbed use and occupation' of the Indians certain lands. E.g., Treaty with the Arapahoes and Cheyennes, 1867, 15 Stat. 593, 594; Treaty with the Crow Indians, 1868, 15 Stat. 649. 650. The 1868 Treaty with the Navajos was similar. 15 Stat. 667, 668. And the 1855 treaty with the Quiault Indian Tribe, 12 Stat. 971, which the Supreme Court of Washington held barred state regulation of reservation fishing, promised only that lands would be 'reserved, for the use and occupation of the tribes.' It was implemented by an executive order of November 7, 1873, by which certain lands were 'withdrawn from sale and set apart for the use' of the tribe. See Pioneer Packing Co. v. Winslow, 159 Wash. 655, 657—658, 294 P. 557, 558.
10
The provision creating the Metlakatla Reserve in 1891 was added to a House bill dealing with timber lands on the floor of the Senate by Nebraska's Senator Manderson. Reciting the unfortunate experience of the Metlakatlans in British Columbia and their emigration to Alaska, Senator Manderson explained that his amendment was designed to dispel fears of expulsion from their new lands as from their old, or of intrusion by outsiders seeking to exploit the resources of the islands. The purpose, he stated, was 'simply to allow this band of Indians to remain there under such rules and regulations as the Secretary of the Interior may impose, and give them some recognized footing at that place.' Remarks by Senators Dawes and Dolph were to the same effect. 21 Cong.Rec. 10092—10093(1890). The amendment was agreed to and adopted by both Houses after a conference, with no further discussion.
11
This provision subjecting Metlakatla to rules and regulations of the Secretary of the Interior is unusual. Since 1849 the Secretary had been the officer of the United States charged with administration of the Indian laws, but none of the treaties or statutes which have come to our attention contained such a provision. The Cheyenne and Crow treaties, supra, provided that Congress might regulate matters on the reservations, but this was no delegation of Congress' powers to the Secretary. It was but a recognition by the Indians of powers the Constitution gave to the national legislature.
12
The regulations issued by the Secretary for the government of the Annette Islands January 28, 1915, appear to be without parallel. No such rules applying to other reservations are to be found in the Code of Federal Regulations. The Secretary vested powers of local government in an elective council, 25 CFR (1939 ed.), § 1.2, which was given authority to pass ordinances required not to conflict with 'the laws of the United States, the laws of the Territory of Alaska, or the rules and regulations in this part,' § 1.10, and subject to review by the Secretary, § 1.62. As a condition to the right to vote in local elections, members of the Reserve—limited to Metlakatlans and other natives, § 1.51—were required to swear obedience to local laws, laws of the United States, and laws of the Territory of Alaska, § 1.52. Thus the Secretary, in the exercise of the authority delegated him by Congress, subjected self-government of Metlakatla not only to federal oversight but to territorial laws as well. However, as discussed above, an additional regulation issued by the Secretary in 1915 authorized the use of fish traps at Metlakatla, and this permission has been continued in regulations issued since statehood.
13
Alaska urges that the regulations are invalid because neither the White Act nor the Statehood Act conferred authority on the Secretary to permit Metlakatlans to use fish traps. The State's premise is correct, Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573. However, Congress in 1891 gave the Secretary authority to make rules governing the Metlakatla Reservation, and his authority, like the reservation itself, Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138, extended to the waters surrounding the islands. Does this Act validate the regulations in light of subsequent legislative and executive actions?
14
The Presidential Proclamation of 1916, 39 Stat. 1777, declared waters within 3,000 feet of Annette and adjacent islands to be a part of the Metlakatla Reservation and provided that the Indians should have the use of these waters 'under the general fisheries laws and regulations of the United States as administered by the Secretary of Commerce.' Alaska argues that the purpose of this provision was to place Metlakatla fishermen in the same position as all others in Alaska by subjecting them to the same laws. In 1916 the general laws were federal; now they are those of the State. Therefore, the State contends, the policy of the Proclamation requires that the provision be construed as subjecting the Metlakatlans to the laws governing all other fishermen, which now include the state fish-trap law. The Metlakatlans have the right to exclude others from their waters, Alaska agrees, but not the right to be free from regulation.
15
Alaska does not argue that the Proclamation deprived the Secretary of the Interior of the authority Congress gave him to prescribe rules governing fishing and other activities on the Annette Islands. Assuming the President had power to do so, he did not purport to exercise it. Quite the contrary. The Proclamation recites that the Secretary has determined to establish a cannery for the Metlakatlans, that the Secretary has been given authority to make regulations for Metlakatla by the statute of 1891, and that protection of the Indians' fishing rights is required to assure a supply of fish for the cannery. Apparently the Proclamation was prompted by the threatened encroachment of non-Indian fishermen into Metlakatla waters and the fear that the reservation of the islands might not protect the Indians against such intrusions. No statutory authority for the Proclamation was cited. It was declared to be issued under authority of 'the laws of the United States.' It is clear that President Wilson was attempting to assist and promote the plans of the Secretary of the Interior to develop the reserve under his statutory authority, not to limit or destroy that authority. The subjection of Metlakatla to general fisheries laws and to regulations of the Secretary of Commerce thus did not make those laws and regulations superior to regulations of the Secretary of the Interior. Rather the general laws and Commerce regulations were adopted as a part of the Interior regulations, so far as not in conflict with other rules adopted by the Secretary of the Interior and subject to his further modification under the power given him in 1891.
16
Nor did the White Act impair the Secretary's power. That statute permitted the Secretary for conservation purposes to limit the taking of salmon in areas of his designation, but prohibited his granting exclusive rights in so doing. This Court in Hynes v. Grimes Packing Co., 337 U.S. 86, 69 S.Ct. 968, 93 L.Ed. 1231, held that the prohibition bars the Secretary from creating exclusive White Act rights in Indians as well as in non-Indians, but it expressly disclaimed holding that no exclusive Indian rights may exist. 337 U.S., at 118—119, 122 123, 69 S.Ct. 968. The Secretary's regulations did not create exclusivity; that was a part of the reservation as created in 1891 and clarified by the proclamation of 1916, which excluded others from fishing in Metlakatla waters.
17
In 1958, 72 Stat. 545, Alaska was added to the list of States and Territories permitted to exercise civil and criminal jurisdiction over Indian reservations. The State has not argued that this took away the power of the Secretary of the Interior to make regulations contrary to state law. Appellant has argued, to the contrary, that the statute expressly preserved Indian fishing rights from state laws. The statute granting States civil and criminal jurisdiction was passed in 1953, 67 Stat. 588, 18 U.S.C. § 1162, 18 U.S.C.A. § 1162, 28 U.S.C. § 1360, 28 U.S.C.A. § 1360. Subsection (b) of that statute 18 U.S.C. § 1162, 18 U.S.C.A. § 1162 provides that nothing therein shall authorize alienation encumbrance, or taxation of Indian property, 'or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.'
18
This statute expressly protects against state invasion all uses of Indian property authorized by federal treaty, agreement, statute, or regulation, but only those fishing rights and privileges given by federal treaty, agreement, or statute. It might plausibly be argued, therefore, that fishing rights given by regulation are not protected and state jurisdiction is established. Legislative history is silent as to the interpretation of the provision. See H. R. Rep. No. 848, 83d Cong., 1st Sess.; S.Rep. No. 699, 83d Cong., 1st Sess.; 99 Cong.Rec. 9962, 10782, 10928 (1953). The apparent purpose of the proviso was to preserve federally granted fishing rights. It would be sheer speculation to attribute significance to the imperfect parallelism of the provisions protecting property and fishing rights in the absence of any suggested reason for excluding fishing rights based on regulations. The process of statutory drafting and evolution, here veiled from scrutiny, is too imprecise to permit such an inference. Cf. United States v. Mersky, 361 U.S. 431, 437, 80 S.Ct. 459, 4 L.Ed.2d 423. In any event, the proviso also protects rights given the Indians by statute respecting the control and regulation of fishing, and the 1891 statute gave the Metlakatlans the right to fish under regulations of the Secretary of the Interior.
19
Section 6(e) of the Alaska Statehood Act, 72 Stat. 339, 340 341, 48 U.S.C.A. preceding § 21, providing for the conveyance of United States properties 'used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska,' contemplated transfer to the State of the same measure of administration and jurisdiction over fisheries and wildlife as possessed by other States, S.Rep. No. 1929, 81st Cong., 2d Sess. 13—14 (1950); H.R. Rep. No. 1731, 80th Cong., 2d Sess. 1 (1948); S. Rep. No. 1028, 83d Cong., 2d Sess. 31 (1954); S. Rep. No. 1163, 85th Cong., 1st Sess. 3 (1957), see Geer v. State of Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793, after the transition period during which the State was to establish machinery for this purpose. Section 4, however, as amended by 73 Stat. 141, required Alaska to disclaim all right and title to any United States property not granted her by the statute, and also 'to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives.' Such property was to 'be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority, except to such extent as the Congress has prescribed or may hereafter prescribe,' with immaterial exceptions, and provided that claims against the United States are neither enlarged, diminished, nor recognized by these provisions. This disclaimer is substantially the same as found in the Acts admitting 13 other States. See S. Rep. No. 315, 82d Cong., 1st Sess. 15 (1951).
20
Alaska does not expressly argue that the Secretary's power was destroyed by the Statehood Act. She does, however, contend that control of all fishing was transferred to the State with no exception for Indian fishing, and that only the exclusiveness of Metlakatla's fishing rights was preserved. But legislative history makes clear that the transfer of jurisdiction over fishing was subject to rights reserved in § 4. S.Rep.No.1929, 81st Cong., 2d Sess. 2 (1950).
21
Clearly this section does not protect only 'recognized' Indian rights—those the taking of which would be compensable by the United States. Committee reports demonstrate the aim of Congress to preserve the status quo as to a broader class of 'right,' including, in the case of land, mere possession or occupancy. Compensation was an issue Congress took pains to avoid. See H.R. Rep.No. 1731, 80th Cong., 2d Sess. 15 (1948); H.R. Rep. No. 255, 81st Cong., 1st Sess. 13 (1949); S. Rep. No. 1028, 83d Cong., 2d Sess. 4, 29—30 (1954); S. Rep. No. 1163, 85th Cong., 1st Sess. 15 (1957). We need not here explore the remoter reaches of this protection. The Metlakatla Reservation was Indian property within § 4. Whether or not the 'absolute jurisdiction' retained by the United States in § 4 is exclusive of state authority, see Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573, the statute clearly preserves federal authority over the reservation. Federal authority was lodged in the Secretary in 1891, and it was not dislodged by the Statehood Act.
22
However, in issuing the present regulations the Secretary relied not on the 1891 statute but on the White Act and the Statehood Act, neither of which authorized his action. In a letter to the Solicitor General, filed by the United States as an Appendix to its brief as amicus curiae, the Secretary left no doubt that in issuing the regulations he acted under compulsion of what he conceived to be his duty under the Statehood Act to preserve the status quo. He deemed himself, as it were, to be a mere automaton. The exercise of any authority that the Secretary has under the reservation statute to allow fish traps necessarily involves his judgment on a complex of facts, his evaluation of the relative weights of the Indians' need for traps and of the impact of traps at Metlakatla on the State's interest in conservation. We cannot make this determination for him.
23
The appropriate course is to vacate the judgment of the Supreme Court of Alaska and remand the case there to be held to give ample opportunity for the Secretary of the Interior with all reasonable expedition to determine prior to the 1963 salmon fishing season what, if any, authority he chooses to exercise in light of this opinion. Should the Secretary fail so to act, the parties may apply to the Alaska court for further proceedings not inconsistent with this opinion. See Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618—619, 64 S.Ct. 1215, 88 L.Ed. 1488. The stay granted by MR. JUSTICE BRENNAN and continued by the Court will remain in force until the end of the 1962 salmon fishing season, as defined in the regulations issued by the Secretary of the Interior. It is so ordered.
24
Judgment vacated, and case remanded.
1
25 Stat. 1009; 29 Stat. 316 (Treasury Department); 34 Stat. 478, now 48 U.S.C. §§ 230—239, 241—242 (Commerce Department), 48 U.S.C.A. §§ 230—239, 241—242; 43 Stat. 464, now 48 U.S.C. §§ 221—228 (Commerce Department), 48 U.S.C.A. §§ 221—228. The Secretary of the Interior succeeded to these responsibilities in 1939. 1939 Reorganization Plan No. II, § 4(e), 53 Stat. 1431, 1433.
2
72 Stat. 339, 340—341. Alaska adopted a comprehensive fish and game code April 17, 1959, Alaska Laws 1959, c. 94, and received full control over her resources soon afterward.
3
Letter of Douglas McKay, Secretary of the Interior, to Herbert C. Bonner, Chairman, House Comm. on Merchant Marine & Fisheries, Oct. 7, 1955.
4
Alaska Laws 1931, pp. 275—276; 1947, pp. 325—326; 1953, pp. 401—402; 1955, pp. 447—448.
5
Alaska Laws 1959, c. 17. As amended by id., c. 95, the statute reads as follows:
'Section 1. It shall be unlawful to operate fish traps, including but not limited to floating, pile—driven or hand-driven fish traps, in the State of Alaska on or over any of its lands, tidelands, submerged lands, or waters; provided nothing in this section shall prevent the operation of small hand-driven fish traps of the type ordinarily used on rivers of Alaska which are otherwise legally operated in or above the mouth of any stream or river in Alaska; not shall this Act be construed so as to violate Sec. 4 of Public Law 85—508, 72 Stat. 339, which constitutes a compact between the United States and Alaska, pursuant to which the State disclaims all right and title to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called Natives) or is held by the United States in trust for said Natives.'
6
In 1934, when the Metlakatlans were made citizens, Congress declared that reservations made for them by statute, order, or proclamation should 'continue in full force and effect,' 48 Stat. 667.
7
Since 1944 Metlakatla has been a chartered federal corporation under a constitution adopted pursuant to the Wheeler-Howard Act, 48 Stat. 984, 988, as amended, 49 Stat. 1250, 25 U.S.C. §§ 473a, 476, 477, 25 U.S.C.A. §§ 473a, 476, 477.
| 12
|
369 U.S. 111
82 S.Ct. 580
7 L.Ed.2d 604
PUBLIC AFFAIRS ASSOCIATES, INC., etc., Petitioner,v.Vice Admiral Hyman G. RICKOVER. Vice Admiral Hyman G. RICKOVER, Petitioner, v. PUBLIC AFFAIRS ASSOCIATES, INC., etc.
Nos. 36, 55.
Argued Nov. 6 and 7, 1961.
Decided March 5, 1962.
Harry N. Rosenfield for petitioner in No. 36 and for respondent in No. 55.
Joseph A. McDonald, Washington, D.C., for respondent in No. 36 and for the petitioner in No. 55.
PER CURIAM.
1
These two cases arose under the Declaratory Judgment Act of June 14, 1934, 48 Stat. 955, as amended, now 28 U.S.C. (1958 ed.) §§ 2201 and 2202, 28 U.S.C.A. §§ 2201, 2202. The plaintiff, an educational publishing corporation, asked defendant, Vice Admiral Rickover, for leave to publish, to an undefined extent, uncopyrighted speeches he had theretofore delivered. He refused on the ground that what he claimed to be exclusive publishing rights had been sold to another publisher, and he gave notice of copyright on speeches subsequent to the plaintiff's demand. Since the defendant threatened restraint of plaintiff's use of his speeches, the plaintiff sought this declaratory relief. The District Court dismissed the complaint on the merits, 177 F.Supp. 601. The Court of Appeals (one judge dissenting), agreeing with the District Court that the defendant had, as to his uncopyrighted speeches, the commonlaw rights of an author, held that he had forfeited his rights by reason of their 'publication'; as to his copyrighted speeches, that court remanded the case to the District Court for determination of the extent to which 'fair use' was open to the plaintiff. 109 U.S.App.D.C. 128, 284 F.2d 262. By petition for certiorari and cross-petition both parties sought review and because serious public questions were in issue we brought the cases here. 365 U.S. 841, 81 S.Ct. 801, 5 L.Ed.2d 808.
2
The Declaratory Judgment Act was an authorization, not a command. It gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so. Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 499, 62 S.Ct. 1173, 86 L.Ed. 1620; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299—300, 63 S.Ct. 1070, 87 L.Ed. 1407; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384, 89 L.Ed. 1725; Mechling Barge Lines v. United States, 368 U.S. 324, 331, 82 S.Ct. 337, 7 L.Ed.2d 317. Of course a District Court cannot decline to entertain such an action as a matter of whim or personal disinclination. 'A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.' Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 644, 92 L.Ed. 784. We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations. Eccles v. Peoples Bank, supra, at 432, 68 S.Ct. at 644.
3
In these cases we are asked to determine matters of serious public concern. They relate to claims to intellectual property arising out of public employment. They thus raise questions touching the responsibilities and immunities of those engaged in the public service, particularly high officers, and the rightful demands of the Government and the public upon those serving it. These are delicate problems; their solution is bound to have far-reaching import. Adjudication of such problems, certainly by way of resort to a discretionary declaratory judgment, should rest on an adequate and full-bodied record. The record before us is woefully lacking in these requirements.
4
The decisions of the courts below rested on an Agreed Statement of Facts which sketchily summarized the circumstances of the preparation and of the delivery of the speeches in controversy in relation to the Vice Admiral's official duties. The nature and scope of his duties were not clearly defined and less than an adequate exposition of the use by him of government facilities and government personnel in the preparation of these speeches was given. Administrative practice, insofar as it may relevantly shed light, was not explored. The Agreed Statement of Facts was in part phrased, modified and interpreted in the course of a running exchange between trial judge and counsel. The extent of the agreement of counsel to the Agreed Statement of Facts was in part explained in the course of oral argument in the District Court. None of the undetailed and loose, if not ambiguous, statements in the Agreed Statement of Facts was subject to the safeguards of critical probing through examination and cross-examination. This is all the more disturbing where vital public interests are implicated in a requested declaration and the Government asserted no claim (indeed obliquely may be deemed not to have disapproved of the defendant's claim) although the Government was invited to appear in the litigation as amicus curiae and chose not to do so. So fragile a record is an unsatisfactory basis on which to entertain this action for declaratory relief.
5
Accordingly, the judgment of the Court of Appeals is vacated, with direction to return the case to the District Court for disposition not inconsistent with this opinion. It is so ordered.
6
Judgment of Court of Appeals vacated, with direction.
7
Mr. Justice DOUGLAS, concurring.
8
It is conceded that the Declaratory Judgment Act is an authorization, not a command—a conclusion as well settled as is the proposition that the jurisdiction of federal courts is confined to 'cases' or 'controversies.' Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617. The requirements of a 'case' or 'controversy' and the propriety of the use of the declaratory judgment are at times closely enmeshed. In resolving those issues the Court has on the whole been niggardly in the exercise of its authority. Thus, in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, a taxpayer's suit to declare that a public school system could not be used for religious instruction was dismissed because there was not 'the requisite financial interest.' Id., at 435, 72 S.Ct. 397, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078—a decision with which I have great difficulty was given new dimensions. That case held that a taxpayer of the United States had no standing to challenge a federal appropriation, since the question was essentially a matter of public, not private, concern.1 Id., at 487, 43 S.Ct. at 601. This ruling was projected into the state field by the Doremus case, barring relief to those legitimately concerned with the operation of the public school system.
9
At times the question of the 'ripeness' of an issue for judicial review is brigaded with the appropriateness of declaratory relief. In Public Service Comm. of Utah v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 97 L.Ed. 291, relief was denied though a carrier's certificate to do an interstate business was placed in jeopardy by threatened state action. That principle was extended in Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, to deny relief in a situation comparable to a suit to remove a cloud from one's title. For a bank was being saddled with conditions by the Federal Reserve System that crippled its activities and restricted the market for its stock. On other occasions, 'mootness' has been used as the rubric to deny relief through the route of a declaratory judgment, even though the litigant was still insecure and in peril as a result of administrative action. Mechling Barge Lines v. United States, 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317.
10
At other times the issue is said to be 'abstract' because of the lack of immediacy in the threatened enforcement of a law. Thus, a person must risk going to jail or losing his job to get relief. That was true in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989, a case involving Connecticut's birth-control law, and in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, involving Covil Service Rules restricting the political rights of federal employees.
11
The list is not complete. But these cases illustrate the restrictive nature of the judge-made rules which have made the federal courts so inhospitable to litigation to vindicate private rights. At no time has the Court been wholly consistent; nor have I. Compare Connecticut Mut. Life Ins. Co. v. Moore, 333 U.S. 541, 556, 68 S.Ct. 682, 92 L.Ed. 863 (dissenting opinion), with Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 82 S.Ct. 199, 7 L.Ed.2d 139. But my maturing view is that courts do law and justice a disservice when they close their doors to people who, though not in jail nor yet penalized, live under a regime of peril and insecurity. What are courts for, if not for removing clouds on title, as well as adjudicating the rights of those against whom the law is aimed, though not immediately applied?
12
Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222, is illustrative of what I deem to be the important role served by the declaratory judgment. A Negro who had not been arrested for riding a segregated bus brought a class action to have his rights and those of his class adjudicated. We held there was an 'actual controversy,' because it was clear that the local authorities were bent on enforcing the segregation law, though they had not enforced it against this plaintiff.2
13
The opinion of the Court in this case seems to set declaratory relief apart as suspect; it leaves the innuendo that if the case were here under a different complaint, the result might be different. I share none of these disparaging thoughts. I agree, however, that no matter what the cause of action might be, the present record leaves gaps which make an adjudication impossible. The lack of evidence as to the extent to which Rickover's literary works were products of his office is fatal for me, though, of course, it would not be to one who considers those facts irrelevant to the legal issue. The approach we take today has often been used to abdicate the judicial function under resounding utterances concerning the importance of judicial self-denial. See, e.g., United States v. International Union United Auto. Workers etc., 352 U.S. 567, 590—592, 77 S.Ct. 529, 1 L.Ed.2d 563. It has also served to place undue emphasis upon the clarity and precision of the questions presented, as in Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, where the Court subjected the appellant 'to the burden of undergoing a third trial' in order that the issues might be in a more 'clean-cut and concrete form.' Id., at 584, 67 S.Ct. at 1427. But on the present record I have no other choice, for without additional facts I must withhold decision.
14
Mr. Chief Justice WARREN, with whom Mr. Justice WHITTAKER concurs, dissenting.
15
With respect to those of Admiral Rickover's speeches written and delivered prior to December 1, 1958, I would affirm. The record made below and filed here is, I believe, adequate to support the judgment of the Court of Appeals that the Admiral's practice of distributing numerous copies of his speeches, without limitations as to the persons who would receive them or the purposes to which they would be put by the recipients, and without so much as a suggestion of a copyright claim, amounted to a dedication of those works to the public domain. At the same time, I recognize the inadequacy of the present record for determining now whether speeches on which a copyright notice had been placed were effectively protected by that notice from other than 'fair use,' and whether Public Affairs intended to make only 'fair use' of those works. I would, therefore, also affirm the remand to the District Court ordered by the Court of Appeals as to such speeches.
16
In the light of these views, I find it unnecessary to pass now on the questions raised in No. 36, and would dismiss that case as premature.
17
Mr. Justice HARLAN, dissenting.
18
The basic issue which brought these cases here was whether Admiral Rickover's speeches were copyrightable in light of the following provision of the Copyright Act: 'No copyright shall subsist in * * * any publication of the United States Government.' (17 U.S.C. § 8, 17 U.S.C.A. § 8.) As I see it, decision of that issue turns not merely on whether such speeches were made by the Admiral in the 'line of duty,' but also, and in my view more fundamentally, on whether such speeches were in any event 'publication(s) of the United States Government.' In my opinion the record is sufficient to require adjudication on both aspects of that issue, and on this phase of the controversy I agree with the result reached by the Court of Appeals. I also agree with its determination as to the adequacy of the copyright notice affixed to speeches delivered after December 1, 1958.
19
However, I consider the record inadequate to justify adjudication as to whether Admiral Rickover's right to copyright was lost with respect to speeches delivered before December 1, 1958, by reason of their alleged entry into 'the public domain.'* As to that issue I would vacate the judgment of the Court of Appeals and remand the case to the District Court for further proceedings. In all other respects I would affirm the judgment below.
1
'Back in 1923, the Court went further and held that the mere fact that a person could show he paid federal taxes made no difference in this respect and gave him no standing to challenge an act of Congress appropriating public funds. The Court recognized that an unconstitutional spending of public money might conceivably necessitate a rise in subsequent tax levies. Nevertheless it held that the causal connection between any specific expenditure and future tax rates would be too remote and uncertain to constitute an immediate personal injury to a taxpayer. Hence he would have no more to complain about than others.
'Rulings of this kind, designed to keep peace among the departments of government, are eminently sensible as over-all policies. Yet they also provide a way to immunize a bad law from attack in the courts: one need only frame the law in such a way as to violate the basic rights of nobody in particular but everybody in general, that is, of the entire American people. Then, since no one can point to an injury that is distinguishable from his neighbors', no one can come into court and challenge the legislation!' Edmond Cahn, How to Destroy the Churches, Harper's Magazine, Nov. 1961, p. 36.
2
And see Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201, where we held that a Negro who filed a complaint with the Interstate Commerce Commission against an interstate carrier for discriminating against him had standing to complain, though it did not appear that he intended to make a similar railroad journey:
'He is an American citizen free to travel, and he is entitled to go by this particular route whenever he chooses to take it and in that event to have facilities for his journey without any discrimination against him which the Interstate Commerce Act forbids.' Id., at 93, 61 S.Ct. at 876.
*
The stipulation states that with respect to 20 of the 22 speeches made before December 1, 1958, 'Admiral Rickover mailed some to individuals who had requested copies or who Admiral Rickover believed would be interested in the subject. Some were sent by Admiral Rickover * * * to the sponsor of the speech to be made available to the press and others at the place where the speech was to be delivered.' (Emphasis added.) It appears from the stipulation that no further distribution other than for press use was ever made. Whether the foregoing publications were general enough to amount to a dedication to the public of all or any of these speeches depends on more precise information than is afforded by the stipulation.
| 78
|
369 U.S. 350
82 S.Ct. 805
7 L.Ed.2d 762
Jesse TURNER, Appellant,v.CITY OF MEMPHIS, TENNESSEE, et al.
No. 84.
Argued Feb. 27, 1962.
Decided March 26, 1962.
Mrs. Constance Baker Motley, New York City, for appellant.
Frank B. Gianotti, Jr., Memphis, Tenn., for appellee, City of memphis.
John M. Heiskell, Memphis, Tenn., for appellees, Dobbs Houses, Inc., and W. S. Haverfield.
PER CURIAM.
1
Appellant, a Negro refused nonsegregated service in the Memphis Municipal Airport restaurant operated by appellee Dobbs Houses, Inc., under a lease from appellee City of Memphis, instituted this action on behalf of himself and other Negroes similarly situated seeking an injunction against such discrimination. He rested jurisdiction upon 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3) and premised the cause of action upon 42 U.S.C. § 1983, 42 U.S.C.A. § 1983. Although the complaint alleged that appellees acted under color of state law, it did not identify any particular state statutes or regulations being challenged. But appellees' answers, in addition to asserting that the restaurant was a private enterprise to which the Fourteenth Amendment did not apply, invoked Tenn.Code Ann. §§ 53—2120, 53—2121, and Regulation No. R—18(L). The statutes as now phrased authorize the Division of Hotel and Restaurant Inspection of the State Department of Conservation to issue 'such rules and regulations * * * as may be necessary pertaining to the safety and/or sanitation of hotels and restaurants * * *' and make violations of such regulations a misdemeanor. The regulation, promulgated by the Division, provides that 'Restaurants catering to both white and negro patrons should be arranged so that each race is properly segregated.' The answers also set up the lease agreement which provides, inter alia, that the leased premises are to be used 'only and exclusively for lawful purposes, and no part of the premises shall be used in any manner whatsoever for any purposes in violation of the laws of * * * the State of Tennessee * * *.' The City of Memphis alleged further that unless and until the regulation was declared unconstitutional, the city would be bound to object to desegregation of the restaurant by Dobbs Houses as a violation of Tennessee law and of the lease. Dobbs Houses alleged that desegregation by it of the restaurant would therefore subject it to forfeiture of the lease. Dobbs Houses later amended its answer to include a defense based on Tenn.Code Ann. § 62—710. That statute 'abrogates' Tennessee's common-law cause of action for exclusion from hotels or other public places, and declares that the operators of such establishments are free to exclude persons 'for any reason whatever.'
2
When the appellant moved for summary judgment before a single district judge, the appellees opposed the motion on the ground that the relief sought necessarily challenged the constitutionality of the state statutes and regulation so that under 28 U.S.C. §§ 2281, 2284, 28 U.S.C.A. §§ 2281, 2284, a three-judge court was required. The single judge thereupon convened a three-judge court. Upon renewal by the appellant before that court of his motion for summary judgment, the appellees urged, and the three-judge court ordered, that appellant's suit should be held in abeyance pending a 'Declaratory Judgment suit to be brought by plaintiffs in the Tennessee Courts seeking an interpretation of the State statutes under consideration.' Appellant, being in doubt whether the case was one 'required * * * to be heard and determined by a district court of three judges,' in addition to appealing from the abstention order directly to this Court under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, also perfected a timely appeal to the Court of Appeals for the Sixth Circuit. We postponed consideration of the question of our jurisdiction of the direct appeal to the hearing on the merits. 368 U.S. 808, 82 S.Ct. 31, 7 L.Ed.2d 19.
3
Whether or not it may be said that appellant's complaint is to be read as seeking, under 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, an 'injunction restraining the enforcement, operation or execution of (a) * * * State statute by restraining the action of any officer of such State in the enforcement or execution of such statute,' a question which we need not decide, it is clear for other reasons that a three-judge court was not required for the disposition of this case. Since, as was conceded by Dobbs Houses at the bar of this Court, the Dobbs Houses restaurant was subject to the strictures of the Fourteenth Amendment under Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, the statutes and regulation invoked by appellees could have furnished a defense to the action only insofar as they expressed an affirmative state policy fostering segregating in publicly operated facilities. But our decisions have foreclosed any possible contention that such a statute or regulation may stand consistently with the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Mayor & City Council of Baltimore City v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776; Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114; New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54, 79 S.Ct. 228, 3 L.Ed.2d 234. It follows under our recent decision in Bailey v. Patterson, 368 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, that a three-judge court was not required and that jurisdiction of this appeal is vested in the Court of Appeals.
4
But we see no reason why disposition of the case should await decision of the appeal by the Court of Appeals. On the merits, no issue remains to be resolved. This is clear under prior decisions and the undisputed facts of the case. Accordingly no occasion is presented for abstention, and the litigation should be disposed of as expeditiously as is consistent with proper judicial administration. In light of the perfected appeal to the Sixth Circuit Court of Appeals, it is appropriate that we treat, and we do treat, appellant's jurisdictional statement as a petition for writ of certicrari prior to judgment in the Court of Appeals. 28 U.S.C. §§ 1254(1), 2101(e), 28 U.S.C.A. §§ 1254(1), 2101(e); Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 370—371, 69 S.Ct. 606, 608, 93 L.Ed. 741. The petition is granted, the District Court's abstention order is vacated and the case is remanded to the District Court with directions to enter a decree granting appropriate injunctive relief against the discrimination complained of.
5
Vacated and remanded.
6
Mr. Justice WHITTAKER did not participate in the decision of this case.
| 12
|
369 U.S. 121
82 S.Ct. 654
7 L.Ed.2d 614
Mario DI BELLA, Petitioner,v.UNITED STATES of America. UNITED STATES of America, Petitioner, v. Daniel J. KOENIG.
Nos. 21 and 93.
Argued Jan. 16 and 17, 1962.
Decided March 19, 1962.
Jerome Lewis, Brooklyn, N.Y., for petitioner in No. 21. Bruce J. Terris, Washington, D. C., for respondent in No. 21.
Bruce J. Terris, Washington, D. C., for petitioner in No. 93. Joseph P. Manners, Miami, Fla., for respondent in No. 93.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
These two cases present variants of the same problem: the appealability of an order granting or denying a pre-trial motion to suppress the evidentiary use in a federal criminal trial of material allegedly procured through an unreasonable search and seizure.1 A brief recital of the procedural history of each will place our problem in context.
2
On October 15, 1958, a warrant was issued by a United States Commissioner in the Eastern District of New York for the arrest of Mario DiBella upon a complaint charging unlawful sales of narcotics. The warrant was executed on March 9, 1959, in DiBella's apartment, and was followed by seizure of the drugs, equipment, and cash now in question. DiBella was arraigned and released under bail the next day. On June 17, 1959, a motion to suppress was filed on his behalf with the District Court for the Eastern District of New York, and hearing was scheduled for July 6. Several continuances followed, and before the hearing was held, on August 25, an indictment against DiBella was returned in the same district. The motion was ultimately denied, without prejudice to renewal at trial. 178 F.Supp. 5. The Court of Appeals for the Second Circuit held the order appealable, in accordance with its prior decisions, because the motion was filed before return of the indictment. 284 F.2d 897.
3
The motion in the companion case, on behalf of Daniel Koenig, was likewise filed before indictment, and this time in a district other than that of trial. Koenig had been arrested on September 22, 1959, in the Southern District of Florida on the basis of a complaint charging robbery of a federally insured bank in the Southern District of Ohio. His motion to suppress and for return of property seized during that arrest was filed in the Florida federal court on October 12, three days after the local United States Commissioner had held a final hearing on the Ohio complaint and two days before he recommended a warrant of removal. On October 16, an indictment against Koenig was returned in the Southern District of Ohio. After three hearings on the motion, the Florida District Court entered its order on December 18, granting suppression but denying return without prejudice to renewal of the motion in the trial court. The Government's appeal to the Court of Appeals for the Fifth Circuit was dismissed for lack of jurisdiction on the ground that, following recent decisions of that court, the order was interlocutory in a criminal case. 290 F.2d 166. We granted certiorari in the two cases, 365 U.S. 809, 81 S.Ct. 692, 5 L.Ed.2d 690 and 368 U.S. 812, 82 S.Ct. 31, 7 L.Ed.2d 21, respectively, to resolve a conflict among the circuits.
4
The settled view of the Second Circuit, that a ruling on a pre-indictment motion invariably lays the basis for immediate appellate review, in that it constitutes a 'final decision' under 28 U.S.C. § 1291, 28 U.S.C.A. § 1291, even though an indictment intervenes, has not been squarely passed upon by this Court. We have denied appealability from orders on post-indictment motions to both the Government, Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442, and the defendant, Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275. The Court has, however, in fact allowed appeals from orders granting and denying pre-indictment motions,2 and these dispositions have given rise to explanatory dicta that lend support to the rule developed in the Second Circuit.3 Not only disagreement among the circuits but dubieties within them demand an adjudication based upon searching consideration of such conflicting and confused views regarding a problem of considerable importance in the proper administration of criminal justice.
5
The general principle of federal appellate jurisdiction, derived from the common law and enacted by the First Congress, requires that review of nisi prius proceedings await their termination by final judgment. First Judiciary Act, §§ 21, 22, 25, 1 Stat. 73, 83, 84, 85 (1789); see McLish v. Roff, 141 U.S. 661, 12 S.Ct. 118, 35 L.Ed. 893. This insistence on finality and prohibition of piecemeal review discourage undue litigiousness and leaden-footed administration of justice, particularly damaging to the conduct of criminal cases. See Cobbledick v. United States, 309 U.S. 323, 324-326, 60 S.Ct. 540, 541-542, 87 L.Ed. 783.
6
Since the procedural aspects of law deal with the practical affairs of men and do not constitute an abstract system of doctrinaire notions, Congress has recognized the need of exceptions for interlocutory orders in certain types of proceedings where the damage of error unreviewed before the judgment is definitive and complete, see Collins v. Miller, 252 U.S. 364, 370, 40 S.Ct. 347, 349, 64 L.Ed. 616, has been deemed greater than the disruption caused by intermediate appeal. See 30 Stat. 544, 553 (1898), as amended, 11 U.S.C. § 47, 11 U.S.C.A. § 47 (bankruptcy proceedings); 28 U.S.C. § 1252, 28 U.S.C.A. § 1252 (orders invalidating federal statutes); 28 U.S.C. § 1253, 28 U.S.C.A. § 1253 (injunctions issued or refused by statutory three-judge courts); 28 U.S.C. § 1292(a)(1)-(4), 28 U.S.C.A. § 1292(a)(1-4) (injunctions, receivership, admiralty, patent infringement). Most recently, in the Interlocutory Appeals Act of 1958, 72 Stat. 1770, 28 U.S.C. § 1292(b), 28 U.S.C.A. § 1292(b), Congress expanded the latitude for intermediate appeals in civil actions through the device of discretionary certification of controlling questions of law. See Note, 75 Harv.L.Rev. 351, 378-379.4
7
Moreover, the concept of finality as a condition of review has encountered situations which make clear that it need not invite self-defeating judicial construction. Thus, acceptance of appeal from orders definitively directing an immediate transfer of property, although an accounting remains, Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404, has been justified as 'review of the adjudication which is concluded because it is independent of, and unaffected by, another litigation with which it happens to be entangled.' Radio Station WOW v. Johnson, 326 U.S. 120, 126, 65 S.Ct. 1475, 1479, 89 L.Ed. 2092.5 Similarly, so as not to frustrate the right of appellate review, immediate appeal has been allowed from an order recognized as collateral to the principal litigation because touching matters that will not 'affect, or * * * be affected by, decision of the merits of (the) * * * case,' Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, when the practical effect of the order will be irreparable by any subsequent appeal. E.g., Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3; Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 688-689, 70 S.Ct. 861, 864, 865, 94 L.Ed. 1206. To like effect is Rule 54(b) of the Federal Rules of Civil Procedure which, as amended in 1961, 368 U.S., at 1015, 28 U.S.C.A., allows appeals in multiple litigation from an express entry of 'final judgment as to one or more but fewer than all of the claims or parties,' but only when the trial judge certifies that 'there is no just reason for delay.'
8
Despite these statutory exceptions to, and judicial construction of, the requirement of finality, 'the final judgment rule is the dominant rule in federal appellate practice.' 6 Moore, Federal Practice (2d ed. 1953), 113. Particularly is this true of criminal prosecutions. See, e. g., Parr v. United States, 351 U.S. 513, 518-521, 76 S.Ct. 912, 916-917, 100 L.Ed. 1377. Every statutory exception is addressed either in terms or by necessary operation solely to civil actions. Moreover, the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law. The Sixth Amendment guarantees a speedy trial. Rule 2 of the Federal Rules of Criminal Procedure counsels construction of the Rules 'to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay'; Rules 39(d) and 50 assign preference to criminal cases on both trial and appellate dockets.
9
Again, the decisions according finality to civil orders in advance of an ultimately concluding judgment have rested on finding a particular claim to be independent, because 'fairly severable from the context of a larger litigious process.' Swift & Co. Packers v. Compania Colombiana Del Caribe, supra, 339 U.S., at 689, 70 S.Ct., at 865. No such severability inheres in a motion seeking the suppression of evidence at a forthcoming trial; its disposition, as the Court recognized in Cogen v. United States, supra, 278 U.S., at 223, 49 S.Ct. at 119, 'will necessarily determine the conduct of the trial and may vitally affect the result.' No less when it precedes indictment, the motion presents an issue that is involved in and will be part of a criminal prosecution in process at the time the order is issued.
10
The precise question before us has been much canvassed in the lower courts. It has not only produced a conflict among the circuits, but has provoked practical difficulties in the administration of criminal justice and caused expressions of dissatisfaction even in courts that have sustained an appeal. Although only the Fourth and Fifth Circuits have clearly departed from the Second Circuit's view,6 the consensus in the others is far from unwavering.7 The First Circuit, for example, has declined to permit pretrial entertainment of any suppression motions other than those explicitly authorized by the language of Rule 41(e). Centracchio v. Garrity, 1 Cir., 198 F.2d 382, 386-389 (1952); accord, e. g., Benes v. Canary, 224 F.2d 470, 472 (C.A.6th Cir. 1955). And see In re Fried, 161 F.2d 453, 465-466 (C.A.2d Cir. 1947) (opinions of L. Hand and A. Hand, JJ.). These opinions manifest a disinclination to treat as separate and final rulings on the admissibility of evidence which depend on factual contentions that may be more appropriately resolved at a plenary trial. Similarly, a California District Court has recently dismissed for want of equity a pre-indictment bill to suppress, on the ground that, at the time relief would issue, there was an adequate remedy at law by motion in the criminal trial; and the Ninth Circuit refused an application for prerogative writs. Rodgers v. United States, 158 F.Supp. 670 (1958); id., at 684 note. See also Eastus v. Bradshaw, 94 F.2d 788 (C.A.5th Cir. 1938). In the Third Circuit, which up to now has agreed with the Second, the latest opinion on the subject expresses doubts as to the validity of its precedents. United States v. Murphy, 290 F.2d 573, 575 n. 2 (1961).
11
We should decide the question here—we are free to do so—with due regard to historic principle and to the practicalities in the administration of criminal justice. An order granting or denying a pre-indictment motion to suppress does not fall within any class of independent proceedings otherwise recognized by this Court, and there is every practical reason for denying it such recognition. To regard such a disjointed ruling on the admissibility of a potential item of evidence in a forthcoming trial as the termination of an independent proceeding, with full panoply of appeal and attendant stay, entails serious disruption to the conduct of a criminal trial.8 The fortuity of a pre-indictment motion may make of appeal an instrument of harassment, jeopardizing by delay the availability of other essential evidence. See Rodgers v. United States, supra, 158 F.Supp., at 673 n. 1. Furthermore, as cases in the Second Circuit make clear, appellate intervention makes for truncated presentation of the issue of admissibility, because the legality of the search too often cannot truly be determined until the evidence at the trial has brought all circumstances to light. See In re Milburne, 77 F.2d 310, 311 (1935); Grant v. United States, 291 F.2d 227, 229 (1961).9
12
Nor are the considerations against appealability made less compelling as to orders granting motions to suppress, by the fact that the Government has no later right to appeal when and if the loss of evidence forces dismissal of its case. United States v. Pack, 247 F.2d 168 (C.A.3d Cir. 1957); Umbriaco v. United States, 258 F.2d 625, 626 (C.A.9th Cir. 1958). As the Ninth Circuit said of this circumstance, the Government is no more disadvantaged than in the case of an adverse ruling on the evidence during trial. United States v. Rosenwasser, 145 F.2d 1015, 1018, 156 A.L.R. 1200 (1944). What disadvantage there be springs from the historic policy, over and above the constitutional protection against double jeopardy, that denies the Government the right of appeal in criminal cases save as expressly authorized by statute. United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445; United States v. Dickinson, 213 U.S. 92, 102-103, 29 S.Ct. 485, 488-489, 53 L.Ed. 711; Carroll v. United States, 354 U.S. 394, 400-403 and n. 9-12, 77 S.Ct. 1332, 1336-1338, 1 L.Ed.2d 1442. No such expression appears in 28 U.S.C. § 1291, 28 U.S.C.A. § 1291, and the Government's only right of appeal, given by the Criminal Appeals Act of 1907, 34 Stat. 1246, now 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, is confined to narrowly defined situations not relevant to our problem. Allowance of any further right must be sought from Congress and not this Court. Carroll v. United States, supra, 354 U.S., at 407-408, 77 S.Ct., at 1340-1341.
13
In the Narcotic Control Act of 1956, § 201, 70 Stat. 567, 573, 18 U.S.C. § 1404, 18 U.S.C.A. § 1404, Congress did grant the Government the right to appeal from orders granting pre-trial motions to suppress the use of seized narcotics as evidence; but, though invited to do so,10 it declined to extend this right to all suppression orders. Since then, each Congress has had before it bills to accomplish that extension,11 at least one of which has been reported favorably.12 As yet, however, none has been adopted.
14
We hold, accordingly, that the mere circumstance of a pre-indictment motion does not transmute the ensuing evidentiary ruling into an independent proceeding begetting finality even for purposes of appealability. Presentations before a United States Commissioner, Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-354, 51 S.Ct. 153, 156-157, 75 L.Ed. 374, as well as before a grand jury, Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783, are parts of the federal prosecutorial system leading to a criminal trial. Orders granting or denying suppression in the wake of such proceedings are truly interlocutory, for the criminal trial is then fairly in train. When at the time of ruling there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment—in each such case the order on a suppression motion must be treated as 'but a step in the criminal case preliminary to the trial thereof.' Cogen v. United States, 278 U.S. 221, 227, 49 S.Ct. 120. Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent. Ibid.; see Carroll v. United States, 354 U.S. 394, 404 n. 17, 77 S.Ct. 1338; In re Brenner, 6 F.2d 425 (C.A.2d Cir. 1925).
15
An alternative ground for appealability in the Koenig case, likewise culled from dicta in some of our decisions, would assign independence to the suppression order because rendered in a different district from that of trial. Dier v. Banton, 262 U.S. 147, 43 S.Ct. 533, 67 L.Ed. 915, the only holding pointed to, is clearly inapposite; it allowed an appeal from an order by a federal bankruptcy court permitting delivery of a bankrupt's papers to state prosecuting officials. Cf. Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233; Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620. There is a decision in the Second Circuit, United States v. Klapholz, 230 F.2d 494 (1956), allowing the Government an appeal from an order granting a post-indictment motion to suppress, apparently for the single reason that the motion was filed in the district of seizure rather than of trial; but the case was soon thereafter taken by a District Court to have counseled declining jurisdiction of such motions for reasons persuasive against allowing the appeal: 'This course will avoid a needless duplication of effort by two courts and provide a more expeditious resolution of the controversy besides avoiding the risk of determining prematurely and inadequately the admissibility of evidence at the trial. * * * A piecemeal adjudication such as that which would necessarily follow from a disposition of the motion here might conceivably result in prejudice either to the Government or the defendants, or both.' United States v. Lester, 21 F.R.D. 30, 31 (D.C.S.D.N.Y.1957). Rule 41(e), of course, specifically provides for making of the motion in the district of seizure. On a summary hearing, however, the ruling there is likely always to be tentative. We think it accords most satisfactorily with sound administration of the Rules to treat such rulings as interlocutory.
16
The judgment of the Court of Appeals in No. 21 is vacated and the cause is remanded with instructions to dismiss the appeal. In No. 93, the judgment is affirmed.
17
It is so ordered.
18
Judgment of Court of Appeals in No. 21 vacated and cause remanded with instructions; judgment in No. 93 affirmed.
19
THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice STEWART concur in the result.
20
Mr. Justice WRITTAKER took no part in the disposition of these cases.
1
Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. provides:
'A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) 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.'
2
Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 157, 158, 75 L.Ed. 374.
3
See Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 119, 120, 73 L.Ed. 275; Cobbledick v. United States, 309 U.S. 323, 328-329 and n. 6, 60 S.Ct. 540, 543, 87 L.Ed. 783; Carroll v. United States, 354 U.S. 394, 403, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442.
4
In addition to careful specification of these particular orders, Congress has since 1789 declared the existence of authority in the federal courts to issue 'all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,' 28 U.S.C. § 1651, 28 U.S.C.A. § 1651, derived from First Judiciary Act, §§ 13, 14, 1 Stat. 73, 80, 81; but the authority has been most sparingly exercised, when no other remedy will suffice, 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185.
5
In eminent-domain proceedings, however, where the issue of reasonable compensation cannot be thus separated from the lawfulness of the taking, the Court has denied independent review to transfer orders. Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911; cf. Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 71-72, 68 S.Ct. 972, 978, 92 L.Ed. 1212.
6
Fourth Circuit: United States v. Williams, 227 F.2d 149 (1955).
Fifth Circuit: Zacarias v. United States, 261 F.2d 416 (1958); Saba v. United States, 282 F.2d 255 (1960).
In the District of Columbia Circuit, the decisions appear to have inverted the Second Circuit rule: pre-indictment motions have been held interlocutory, Nelson v. United States, 93 U.S.App.D.C. 14, 24-26, 208 F.2d 505, 515—517 (1953), while post-indictment motions have been treated as independent, United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13 (1952). But see United States v. Stephenson, 96 U.S.App.D.C. 44, 223 F.2d 336 (1955).
7
First Circuit: Centracchio v. Garrity, 198 F.2d 382, 385 (1952); Chieftain Pontiac Corp. v. Julian, 209 F.2d 657, 659 (1954) (by implication).
Second Circuit: United States v. Poller, 43 F.2d 911 (1930); In re Milburne, 77 F.2d 310 (1935); United States v. Edelson, 83 F.2d 404 (1936); Cheng Wai v. United States, 125 F.2d 915 (1942); Lagow v. United States, 159 F.2d 245 (1946); In re Fried, 161 F.2d 453, 1 A.L.R.2d 996 (1947); Lapides v. United States, 215 F.2d 253 (1954); Russo v. United States, 241 F.2d 285 (1957); Carlo v. United States, 286 F.2d 841 (1961); Grant v. United States, 291 F.2d 227 (1961); Greene v. United States, 296 F.2d 841 (1961).
Third Circuit: In re Sana Laboratories, 115 F.2d 717 (1940); United States v. Bianco, 189 F.2d 716, 717 n. 2 (1951); United States v. Sineiro, 190 F.2d 397 (1951); United States v. Murphy, 290 F.2d 573 (1961).
Sixth Circuit: Benes v. Canary, 224 F.2d 470 (1955).
Seventh Circuit: Secony Mobil Oil Co. v. United States, 275 F.2d 227 (1960) (by implication) (semble).
Eighth Circuit: Goodman v. Lane, 48 F.2d 32 (1931).
Ninth Circuit: Freeman v. United States, 160 F.2d 69 (1946); Weldon v. United States, 196 F.2d 874, 875 (1952); Hoffritz v. United States, 240 F.2d 109 (1956). But see Rodgers v. United States, 158 F.Supp. 670 (D.C.S.D.Cal.), mandamus and prohibition denied in id., at 684 note (C.A.9th Cir. 1958).
8
It is evident, for example, that the form of independence has been availed of on occasion to seek advantages conferred by the rules governing civil procedure, to the prejudice of proper administration of criminal proceedings. E. g., Greene v. United States, 296 F.2d 841, 843-844 (C.A.2d Cir. 1961) (extended time for appeal); Russo v. United States, 241 F.2d 285, 287-288 (C.A.2d Cir. 1957) (expanded discovery).
9
Although Rule 41(a), supra, note 1, codifies prior practice in preferring that the motion be raised before trial, and provides for the taking of evidence on disputed factual issues, the usual procedure followed at this early stage is to decide the question on affidavits alone; in addition, it has long been accepted that the point can, and on occasion must, be renewed at the trial to preserve it for ultimate appeal. Gouled v. United States, 255 U.S. 298, 312-313, 41 S.Ct. 261, 266, 65 L.Ed. 647; Lawn v. United States, 355 U.S. 339, 353-354, 78 S.Ct. 311, 319-320, 2 L.Ed.2d 321. We do no more than recognize that ordinarily the District Courts will wish to reserve final ruling until the criminal trial.
10
Illicit Narcotics Traffic—Hearings before the Subcommittee on Improvements in the Federal Criminal Code of the Senate Committee on the Judiciary, 84th Cong., 1st Sess. 725-726 (1955); Narcotic Control Act of 1956-id., 2d Sess. 9 (1956).
11
H.R. 9364 and S. 3423, 84th Cong., 2d Sess. (1956); HR. 263 and H.R. 4753, 85th Cong., 1st Sess. (1957); S. 1721, 86th Cong., 1st Sess. (1959); see 105 Cong.Rec. 6190 (remarks of Senator Keating).
12
S.Rep. No. 1478, 85th Cong., 2d Sess. 14-17 (1958). As in 18 U.S.C. §§ 1404 and 3731, 18 U.S.C.A. §§ 1404, 3731, the Subcommittee's proposed bill would have provided safeguards against the taking of harassing or frivolous appeals and would have ensured expeditious review.
| 01
|
369 U.S. 134
82 S.Ct. 676
7 L.Ed.2d 623
UNITED GAS PIPE LINE COMPANY, Appellant,v.IDEAL CEMENT COMPANY et al.
No. 61.
Argued Dec. 13, 1961.
Decided March 19, 1962.
E. Dixie Beggs, Pensacola, Fla., for appellant.
James Lawrence White, New York City, for appellee, Ideal Cement Company.
Submitted on brief by Mr. S. P. Gaillard, Jr., Mobile, Ala., and Mr. Hardy B. Smith, Mobile, Ala., for appellee, Scott Paper Company.
Charles S. Rhyne, Washington, D.C., for City of Mobile, Alabama, as amicus curiae, by special leave of Court.
PER CURIAM.
1
This is an appeal from the Court of Appeals' reversal of a summary judgment entered for the appellant in the United States District Court for the Southern District of Alabama. The suit, based on diversity of citizenship, sought contractual reimbursement of taxes paid to the City of Mobile relative to sales of natural gas to the appellees. They defended on the ground that the contracts contemplated reimbursement only of valid tax payments, and that the License Code of the City of Mobile, § 1, par. 193 (1955), under which the tax was exacted and paid, was invalid under the Commerce Clause of the United States Constitution. The Court of Appeals sustained this contention, by interpreting both the primary and enforcement provisions of the License Code and its surrounding state legislation as operating not to tax a separable local portion of interstate commerce but as a means of licensing appellant's right of entry into the City from without the State. 282 F.2d 574, 580. We postponed determination of our jurisdiction to consideration of the merits, 366 U.S. 916, 81 S.Ct. 1093, 6 L.Ed.2d 240 and now find that the case is properly here under 28 U.S.C. § 1254(2), 28 U.S.C.A. § 1254(2).
2
The interpretation of state law by the Court of Appeals, in an opinion by its Alabama member, was rendered in advance of construction of the License Code by the courts of the State, which alone, of course, can define its authoritative meaning. We ought not, certainly on this record, either accept the Court of Appeals' construction or, on an independent consideration, reject what the Alabama Supreme Court may later definitively approve. The availability of appropriate declaratory-judgment proceedings under Ala.Code, Tit. 7, §§ 156—168 (1940), avoids this unsatisfactory dilemma. Wise judicial administration in this case counsels that decision of the federal question be deferred until the potentially controlling state-law issue is authoritatively put to rest. See Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228—229, 77 S.Ct. 287, 1 L.Ed.2d 267. Accordingly, the judgment of the Court of Appeals is vacated to permit a construction of the License Code of the City of Mobile, so far as relevant to this litigation, to be sought with every expedition in the state courts. It is so ordered.
3
Judgment vacated.
4
Mr. Justice WHITTAKER took no part in the disposition of this case.
5
Mr. Justice DOUGLAS.
6
This case should be disposed of here; the long-drawn-out litigation* foisted on the parties by the Court is needless. No matter how the local ordinance is construed the tax is constitutional.
7
Congress under the Natural Gas Act, as amended, 15 U.S.C.A. § 717 et seq., would have the authority prevent interstate pipelines from delivering any gas for industrial use. Federal Power Comm. v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377. Yet once the interstate movement commences, the line between permissible and impermissible local regulation is no longer a puzzle.
8
United is an interstate pipeline company that brings natural gas into Alabama and supplies it in the City of Mobile to a distributor, Mobile Gas. United delivers gas to Mobile Gas at three stations not for resale, but for delivery to appellees under contracts between appellant and appellees. The gas, when delivered to Mobile Gas, is at a lower pressure than when it enters the State. When Mobile Gas delivers it to the industrial customers here involved, the gas is at a still lower pressure. The case is therefore on all fours with East Ohio Gas Co. v. Tax Comm., 283 U.S. 465, 51 S.Ct. 499, 75 L.Ed. 1171. In speaking of the delivery of gas at a reduced pressure within Ohio by an interstate carrier, the Court said that the gas was then
9
'divided into the many thousand relatively tiny streams that enter the small service lines connecting such mains with the pipes on the consumers' premises. So segregated the gas in such service lines and pipes remains in readiness or moves forward to serve as needed. The treatment and division of the large compressed volume of gas is like the breaking of an original package, after shipment in interstate commerce, in order that its contents may be treated, prepared for sale, and sold at retail. * * * It follows that the furnishing of gas to consumers in Ohio municipalities by means of distribution plants to supply the gas suitably for the service for which it is intended is not interstate commerce, but a business of purely local concern exclusively within the jurisdiction of the state.' Id., at 471, 51 S.Ct. at 501.
10
Here too the package is broken on delivery of the gas intrastate to Mobile Gas, the distributor, at a reduced pressure.
11
It matters not that the City of Mobile calls the tax levied here a 'license tax.' In Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S.Ct. 1264, 93 L.Ed. 1613, Mississippi levied a 'privilege' tax on the gross receipts of a pipeline that was bringing oil from Mississippi fields to loading racks in that State, where the oil was pumped into railroad cars for shipment out of state.
12
Mr. Justice Rutledge, speaking for himself and three others, said:
13
'Since all the activities upon which the tax is imposed are carried on in Mississippi, there is no due process objection to the tax. The tax does not discriminate against interstate commerce in favor of competing intrastate commerce of like character. The nature of the subject of taxation makes apportionment unnecessary; there is no attempt to tax interstate activity carried on outside Mississippi's borders. No other state can repeat the tax. For these reasons the commerce clause does not invalidate this tax.' Id., at 667 668, 69 S.Ct. at 1266.
14
Mr. Justice Burton, who also joined in the judgment, approved the tax for the following reason: 'I concur in the judgment solely on the ground that the tax imposed by the State of Mississippi was a tax on the privilege of operating a pipe line for transporting oil in Mississippi in intrastate commerce and that, as such, it was a valid tax.' Id., at 668, 69 S.Ct. at 1267.
15
In Southern Natural Gas Corp. v. Alabama, 301 U.S. 148, 57 S.Ct. 696, 81 L.Ed. 970, an interstate pipeline company made deliveries in Alabama to three distributors and one industrial user. These activities were held to be local, on which a nondiscriminatory franchise tax could be levied. In Panhandle Eastern Pipe Line Co. v. Public Service Comm., 332 U.S. 507, 514, 68 S.Ct. 190, 196, 92 L.Ed. 128, direct sales by interstate pipelines to local consumers (as distinguished from deliveries to local distributing companies for resale) were held to be subject to state regulation. Speaking of the Natural Gas Act, we said:
16
'Congress, it is true, occupied a field. But it was meticulous to take in only territory which this Court had held the states could not reach. That area did not include direct consumer sales, whether for industrial or other uses. Those sales had been regulated by the states and the regulation had been repeatedly sustained. In no instance reaching this Court had it been stricken down.' Id., at 519, 68 S.Ct. at 196.
17
The 'license tax' in the present case, if it be such, is only a tax on a wholly intrastate activity, to wit—the delivery of gas to the local distributor for delivery to local consumers.
18
This conclusion is more in the tradition of our cases than was Panhandle Eastern Pipe Line Co. v. Michigan Public Service Comm., 341 U.S. 329, 71 S.Ct. 777, 95 L.Ed. 993, where a State was allowed to exact from an interstate pipeline company a certificate of public convenience and necessity to make direct deliveries of gas to industrial consumers. The Court said that 'the sale and distribution of gas to local consumers' was a transaction 'essentially local' and was 'subject to state regulation without infringement of the Commerce Clause.' Id., at 333, 71 S.Ct. 777, 779. The sales there proposed were to be made directly from the pipeline to the industrial users. Here the gas first goes to the local distributor, which in turn reduces the pressure and makes delivery to the industrial customers. The local nature of the transaction is more apparent and less complicated than it was in the Panhandle case.
19
I would reverse the judgment below and hold the tax valid.
20
Mr. Justice HARLAN, dissenting.
21
In my opinion none of the considerations underlying the doctrine of federal judicial abstention (see Harrison v. N.A.A.C.P., 360 U.S. 167, 176—177, 79 S.Ct. 1025, 3 L.Ed.2d 1152) call for its application here. There is no reasonable likelihood that a prior state construction of this License Code would either change the complexion of the constitutional issue or avoid the necessity of its eventual adjudication by this Court.
22
Even were this local enactment to be construed by the state courts to require a license of the appellant as a pre-condition of engaging in the distribution of natural gas within the City of Mobile, that of itself would not ordain the answer to the constitutional question. See Southern Natural Gas Corp. v. Alabama, 301 U.S. 148, 57 S.Ct. 696; East Ohio Gas Co. v. Tax Comm., 283 U.S. 465, 51 S.Ct. 499, 75 L.Ed. 1171; see also Illinois Natural Gas Co. v. Central Illinois Pub. Serv. Co., 314 U.S. 498, 506, 62 S.Ct. 384, 86 L.Ed. 371. Cf. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421. Nor can I see how such a state adjudication would serve to illumine the nature of United's activities in Mobile.
23
As I view matters, nothing useful is to be accomplished by remitting the parties to the state courts, and I would adjudicate the constitutional issue now.
*
The practice of remitting parties who sue in court to an administrative remedy (see, e.g., Pennsylvania R. Co. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165) or of remitting those who sue in a federal court to a state court (Clay v. Sun Insurance Office, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170; Clark, Federal Procedural Reform and States' Rights, 40 Tex.L.Rev. 211) places a financial burden on litigants, which can be afforded only by those who can take the cost as a tax deduction or get reimbursement through increased rates. For a case where the parties at the end of 14 years were still litigating a $7,000 (approx.) claim after starting in one court, being shunted to an agency, and then ending in a different court, see Pennsylvania R. Co. v. United States, supra.
In Gardner, The Administrative Process, Legal Institutions Today and Tomorrow (1959), pp. 139—140, it was said:
'Anyone who considers judicial review of agency action must allow about a year if he has access to direct review by a court of appeals and about two years if he must file in a district court and then carry the controversy to the court of appeals. If a certiorari question should develop which would warrant Supreme Court review, another year should be added. If the result of the review should be to require further agency proceedings, yet another year or so must be added. Except for the litigant who advantages by delay, not many administrative issues warrant an investment of time such as this. In probably a majority of the circumstances, it would be sounder business practice to adjust at once to the agency decision and go on from there, rather than to endure several years of uncertainty in order to try to improve the result.
'The matter of expense is closely related to that of delay. It is not possible to be precise, and surely it is not polite to mention money. Yet none can discuss realistically judicial review unless he recognizes that an issue of average complexity cannot adequately be carried to the courts except at a cost which will range upward from $5,000.' See also Landis, Report on Regulatory Agencies to the President-Elect (1960), pp. 5—13.
The cost of printing records for this Court is now $3.80 a page.
| 89
|
369 U.S. 141
82 S.Ct. 671
7 L.Ed.2d 629
FONG FOO et al., Petitioners,v.UNITED STATES. STANDARD COIL PRODUCTS CO., Inc., Petitioner, v. UNITED STATES.
Nos. 64, 65.
Argued Jan. 16, 1962.
Decided March 19, 1962.
Arthur Richenthal, New York City, for petitioners.
Archibald Cox, Solicitor General, Washington, D.C., for respondent.
PER CURIAM.
1
The petitioners, a corporation and two of its employees, were brought to trial before a jury in a federal district court upon an indictment charging a conspiracy and the substantive offense of concealing material facts in a matter within the jurisdiction of an agency of the United States, in violation of 18 U.S.C. §§ 371 and 1001, 18 U.S.C.A. §§ 371, 1001. After seven days of what promised to be a long and complicated trial, three government witnesses had appeared and a fourth was in the process of testifying. At that point the district judge directed the jury to return verdicts of acquittal as to all the defendants, and a formal judgment of acquittal was subsequently entered.
2
The record shows that the district judge's action was based upon one or both of two grounds: supposed improper conduct on the part of the Assistant United States Attorney who was prosecuting the case, and a supposed lack of credibility in the testimony of the witnesses for the prosecution who had testified up to that point.
3
The Government filed a petition for a writ of mandamus in the Court of Appeals for the First Circuit, praying that the judgment of acquittal be vacated and the case reassigned for trial. The court granted the petition, upon the ground that under the circumstances revealed by the record the trial court was without power to direct the judgment in question. Judge Aldrich concurred separately, finding that the directed judgment of acquittal had been based solely on the supposed improper conduct of the prosecutor, and agreeing with his colleagues that the district judge was without power to direct an acquittal on that ground. 286 F.2d 556. We granted certiorari to consider a question of importance in the administration of justice in the federal courts. 366 U.S. 959, 81 S.Ct. 1916, 6 L.Ed.2d 1252.
4
In holding that the District Court was without power to direct acquittals under the circumstances disclosed by the record, the Court of Appeals relied primarily upon two decisions of this Court, Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 and Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283. In the first of these cases it was held that a district judge had no power to suspend a mandatory prison sentence, and that a writ of mandamus would lie to require the judge to vacate his erroneous order of suspension. In the second case the Court issued a writ of mandamus ordering a district judge to issue a bench warrant which he had refused to do, in the purported exercise of his discretion, for a person under an indictment returned by a properly constituted grand jury.
5
Neither of those decisions involved the guaranty of the Fifth Amendment that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb.' That constitutional provision is at the very root of the present case, and we cannot but conclude that the guaranty was violated when the Court of Appeals set aside the judgment of acquittal and directed that the petitioners be tried again for the same offense.
6
The petitioners were tried under a valid indictment in a federal court which had juridiction over them and over the subject matter. The trial did not terminate prior to the entry of judgment, as in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901. It terminated with the entry of a final judgment of acquittal as to each petitioner. The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, '(t)he verdict of acquittal was final, and could not be reviewed * * * without putting (the petitioners) twice in jeopardy, and thereby violating the constitution.' United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300.
7
Reversed.
8
Mr. Justice WHITTAKER took no part in the consideration or decision of these cases.
9
Mr. Justice HARLAN, concurring.
10
Were I able to find, as Judge Aldrich did, that the District Court's judgment of acquittal was based solely on the Assistant United States Attorney's alleged misconduct, I would think that a retrial of the petitioners would not be prevented by the Double Jeopardy Clause of the Fifth Amendment. Even assuming that a trial court may have power, in extreme circumstances, to direct a judgment of acquittal, instead of declaring a mistrial, because of a prosecutor's misconduct—a proposition which I seriously doubt—I do not think that such power existed in the circumstances of this case. But since an examination of the record leaves me unable, as it did the majority of the Court of Appeals, to attribute the action of the District Court to this factor alone, I concur in the judgment of reversal.
11
Mr. Justice CLARK, dissenting.
12
The Court speaks with such expanse that I am obliged to dissent. It says that because 'a final judgment of acquittal' was entered pursuant to a directed verdict the propriety of such 'acquittal' cannot be reviewed even though the Government had not concluded its main case at the time the verdict was directed. The District Court under the circumstances here clearly had no power to direct a verdict of acquittal or to enter a judgment thereon. In my view when a trial court has no power to direct such a verdict, the judgment based thereon is a nullity. The word 'acquittal' in this context is no magic open sesame freeing in this case two persons and absolving a corporation from serious grand jury charges of fraud upon the Government.
13
On the record before us it matters not whether the so-called acquittal was pursuant to the trial court's conclusion that the Government's witnesses up to that point lacked credibility or was based on the alleged misconduct of the prosecution.
14
On the first point, the Government had only examined three of its witnesses and was in the process of examining a fourth when the acquittal was entered. The first and third witnesses were merely preliminary, offered to identify documents and explain the functions performed by the individual defendants for the corporate defendant. The second was offered to give the jury an explanation of radiosondes, devices for gathering whether data, which petitioners were furnishing the Government under contracts totaling several million dollars. It was during the latter's testimony—entirely explanatory—that the court called a recess for the stated purpose of requiring the United States Attorney to 'consider whether the public interest is served by a further prosecution of this case.' Upon the vigorous insistence of the United States Attorney himself, the trial was resumed and the Government called its third and fourth witnesses. The fourth witness was the first to testify as to the fraud upon the Government which related to a deliberate scheme to conceal from government inspectors defects in the devices. During direct examination the fourth witness was 'not sure' as to the date of a certain conference at which representatives of the corporate defendant were present. Thereafter at a recess period his memory was refreshed during a conversation with one of the Assistant United States Attorneys. Upon resuming the stand he corrected his previous testimony as to the date, placing it a few months earlier. On cross-examination he admitted that the error had been called to his attention by the Assistant. The court then excused the jury and after excoriating the Assistant called the jury back into session and directed the verdict of acquittal.
15
It is fundamental in our criminal jurisprudence that the public has a right to have a person who stands legally indirected by a grand jury publicly tried on the charge. No judge has the power before hearing the testimony proffered by the Government or at least canvassing the same to enter a judgment of acquittal and thus frustrate the Government in the performance of its duty to prosecute those who violate its law.
16
Here, as the United States Attorney advised the court, only three witnesses of the 'many * * * to be heard from * * * ' had testified. The court had only begun to hear what promised to be a protracted conspiracy case involving many witnesses. The Government had not rested. As the majority of the Court of Appeals observed, the District Court:
17
'abruptly terminated the Government's case * * * long before the Government had had an opportunity to show whether or not it had a case; and, moreover, he did so in ignorance of either the exact nature or the cogency of the specific evidence of guilt which Government's counsel said he had available and was ready to present.' 286 F.2d at 562—563.
18
At such a stage of the case the District Court had no power to prejudge the Government's proof—find it insufficient or unconvincing—and set the petitioners free.
19
On the second point, even if there were misconduct, the court still had no power to punish the Government because of the indiscretion of its lawyer. As this Court said in McGuire v. United States, 273 U.S. 95, 99, 47 S.Ct. 259, 260, 71 L.Ed. 556 (1927), 'A criminal prosecution is more than a game in which the government may be checkmated and the game lost merely because its officers have not played according to rule.' At most, if there had been misconduct, the remedy would have been to declare a mistrial and impose appropriate punishment upon the Assistant United States Attorney, rather than upon the public. In my view the judgment of the Court of Appeals should, therefore, be affirmed.
| 01
|
369 U.S. 147
82 S.Ct. 674
7 L.Ed.2d 634
Marie BENZ, Petitioner,v.NEW YORK STATE THRUWAY AUTHORITY.
No. 234.
Argued Feb. 28, and March 1, 1962.
Decided March 19, 1962.
Lauren D. Rachlin, Buffalo, N.Y., for petitioner.
Julius L. Sackman, Albany, N.Y., for respondent.
PER CURIAM.
1
We granted certiorari in this case, 368 U.S. 886, 82 S.Ct. 139, 7 L.Ed.2d 86, to decide whether the State of New York could, consistently with the Fourteenth Amendment, assert sovereign immunity in a suit brought by petitioner to reform on grounds of mutual mistake, or to rescind for fraud in the inducement, an agreement fixing compensation for land taken under the power of eminent domain. Contrary to our initial impression of the case on the basis of the petition for certiorari, plenary consideration has satisfied us that the New York Court of Appeals decided no more than that this suit could not be maintained in the Supreme Court of the State of New York because exclusive jurisdiction over litigation of this character had been vested in the New York Court of Claims. The case then involves only a matter relating to 'the distribution of jurisdiction in the state courts,' and presents no substantial federal question. E.g., Honeyman v. Hanan, 302 U.S. 375, 58 S.Ct. 273, 82 L.Ed. 312.
2
Since the representative of the State Attorney General advised us on oral argument that the Attorney General will recommend passage of a bill by the State Legislature relieving petitioner from the operation of the statute of limitations governing proceedings in the New York Court of Claims,* we assume that she will be free to present her claims in the appropriate state forum.
3
The writ is dismissed as improvidently granted.
4
Mr. Justice BLACK dissents.
5
Mr. Justice WHITTAKER took no part in the consideration or decision of this case.
*
(Reporter's Note: Such a bill became a law on April 29, 1962, N.Y.Laws 1962, c. 940.)
| 89
|
369 U.S. 153
82 S.Ct. 807
7 L.Ed.2d 641
Harold Beck KESLER, Appellant,v.DEPARTMENT OF PUBLIC SAFETY, FINANCIAL RESPONSIBILITY DIVISION, STATE OF UTAH.
No. 14.
Argued Oct. 10, 1961.
Decided March 26, 1962.
Mr. E. J. Skeen, Salt Lake City, Utah, for appellant.
Mr. Gordon A. Madsen, Salt Lake City, Utah, for appellee.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This case presents the rather rare claim of conflict between an otherwise valid exercise of a State's so-called police power and the overriding authority of the Bankruptcy Act.1 The statute before us is Utah's Motor Vehicle Safety Responsibility Act2—a measure directed towards promoting safety in automobile traffic by administrative and compensatory remedies calculated to restrain careless driving. Its purpose is wholly unrelated to the purposes of the Bankruptcy Act.
2
In June 1957, a Utah court entered judgments in damages against appellant, based on his allegedly negligent operation of an automobile. On appeal to the State's Supreme Court the judgments were affirmed. After the judgments had remained unpaid for sixty days or more, the judgment creditors requested the court clerk to forward to the Department of Public Safety certified copies of the judgments, as provided by the Safety Responsibility Act. Thereupon the Department suspended appellant's automobile registration and his operator's license. On December 31, 1959, appellant was granted a voluntary discharge in bankruptcy, releasing him from the judgment debts. He then sought restoration of his license and registration. This was denied. The Safety Responsibility Act requires satisfaction of judgments due to auto accidents as a condition of reinstatement and specifically provides that a discharge in bankruptcy shall not relieve the judgment debtor from this requirement. Appellant initiated this ancillary bankruptcy proceeding, Local Loan Co. v. Hunt, 292 U.S. 234, 239, 54 S.Ct. 695, 696, 78 L.Ed. 1230, in the United States District Court for Utah, seeking an order requiring restoration of his privileges and a declaration that the Utah law was invalid insofar as it disrespected the discharge of the judgment debt by virtue of § 17 of the Bankruptcy Act, 11 U.S.C. § 35, 11 U.S.C.A. § 35. A three-judge District Court, 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, upheld the statute and denied relief, 187 F.Supp. 277 (1960). The case was brought here on direct appeal, 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and we noted probable jurisdiction, 364 U.S. 940, 81 S.Ct. 459, 5 L.Ed.2d 372.
3
A preliminary point of jurisdiction is noted though it was not adverted to either by the District Court or by the parties. Was this a proper case for convening a three-judge court, as it must have been to justify direct appeal to this Court? The present suit asks that state officials be 'restrained and enjoined' from enforcing designated sections of the Utah Motor Vehicle Safety Responsibility Act because they 'are unconstitutional and void,' in that they are in conflict with § 17 of the Bankruptcy Act and therefore necessarily violative of the Supremacy Clause of the Constitution of the United States, Art. VI. It would seem to be compellingly clear that this case falls within § 2281 of Title 28 of the United States Code, 28 U.S.C.A. § 2281, which bars a suit for an injunction 'upon the ground of the unconstitutionality' of a state statute 'unless the application therefor is heard and determined by a district court of three judges.' This was so heard and appeal was properly brought directly here, unless invalidation of a state statute by virtue of the Supremacy Clause rests on a different constitutional basis than such invalidation because of conflict with any other clause of the Constitution, at least to the extent of reading such an implied exception into the procedure devised by § 2281. Neither the language of § 2281 nor the purpose which gave rise to it affords the remotest reason for carving out an unfrivolous claim of unconstitutionality because of the Supremacy Clause from the comprehensive language of § 2281.
4
Bearing in mind that the requirement for District Court litigation of three judges, of whom one must be a Justice of this Court or a circuit judge, involves a serious drain upon the federal judicial manpower, 'particularly in regions where, despite modern facilities, distance still plays an important part in the effective administration of justice * * *,' this Court has been led by a long series of decisions, in a variety of situations, to generalize that this procedural device was not to be viewed 'as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.' Phillips v. United States, 312 U.S. 246, 250—251, 61 S.Ct. 480, 483, 85 L.Ed. 800. The Court had already held that the three-judge requirement is not to be invoked on a contingent constitutional question. International Ladies' Garment Workers v. Donnelly Co., 304 U.S. 243, 251, 58 S.Ct. 875, 879, 82 L.Ed. 1316. The Court has been consistent in this view in dealing with claims of conflict between a state statute and a federal statute which has the constitutional right of way.
5
Bearing in mind that due regard for the healthy working of the federal judicial system demands that the three-judge court requirement be treated as 'an enactment technical in the strict sense of the term,' we must examine the basis of the plaintiff's claim to determine whether it must come before a single judge or three judges. If in immediate controversy is not the unconstitutionality of a state law but merely the construction of a state law or the federal law, the three-judge requirement does not become operative. Such was the ruling in Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, where the Supremacy Clause was not invoked and therefore the three-judge court was not required. In Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249, Buder was followed. A three-judge court was not required because the issue was 'merely the construction of an act of Congress, not the constitutionality of the state enactment.' 310 U.S., at 359, 60 S.Ct. at 950. Contrariwise, in Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616, the complainant sought to restrain the state officers from enforcing a state statute on the score of unconstitutionality of its threatened application. 316 U.S., at 489, 62 S.Ct. 1122. Accordingly, the requirement of a three-judge court applied. Query v. United States and Ex parte Bransford were clearly differentiated from one another in Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552, where, as in Bransford, 'the complaint did not challenge the constitutionality of the State statute but alleged merely that its enforcement would violate the Emergency Price Control Act. Consequently a three-judge court is not required.' 327 U.S., at 97, 66 S.Ct. at 441.
6
Here, no question of statutory construction, either of a state or a federal enactment, is in controversy. We are confronted at once with the constitutional question whether the discharge in bankruptcy of a debt ousts the police power of a State from a relevant safety measure, the indirect and episodic consequence of which may have some bearing on a discharged debt but which in no wise resuscitates it as an obligation. The general principle elucidated by Mr. Justice Cardozo in differentiating between different stages of adjudication at which issues are reached, Gully v. First National Bank, 299 U.S. 109, 117—118, 57 S.Ct. 96, 100, 81 L.Ed. 70, serves to guide disposition of this case as it differently did Phillips v. United States, supra. This case presents a sole, immediate constitutional question, differing from Buder, Bransford, and Case, which presented issues of statutory construction even though perhaps eventually leading to a constitutional question.
7
The problem of highway safety has concerned legislatures since the early years of the century. Utah, like other States, has responded to this problem by requiring the registration3 and inspection4 of vehicles and prescribing certain necessary equipment;5 by requiring examination and licensing of operators and excluding unqualified persons from driving;6 by providing comprehensive regulations of speed and other traffic conditions;7 and by authorizing extraterritorial service of process on nonresident motorists involved in accidents within the State.8 And, like every other State, Utah has responded by enacting a financial-responsibility law.
8
Financial-responsibility laws are intended to discourage careless driving or to mitigate its consequences by requiring as a condition of licensing or registration the satisfaction of outstanding accident judgments, the posting of security to cover possible liability for a past accident, or the filing of an insurance policy or other proof of ability to respond in damages in the future. By 1915 a San Francisco ordinance required a bond or liability insurance for all buses;9 a number of other cities and States early enacted similar provisions.10 In 1925 Massachusetts forbade the registration of any motor vehicle without proof of adequate liability insurance or other evidence of ability to satisfy a judgment. Mass. Laws 1925, c. 346. That same year the Commissioners on Uniform Laws appointed a committee to consider a uniform compulsory insurance law. Handbook of the National Conference on Uniform State Laws (1932), p. 261.
9
Unwilling to require insurance or its equivalent from all highway users, six other States—five of them in New England adopted within the next two years laws with the same design but limited to careless drivers. The first of these, Connecticut Acts 1925, c. 183, provided for suspension of the registration of those convicted of certain infractions relating to motor vehicles and of those causing accidents of specified gravity, requiring proof of financial responsibility as a condition to restoration. Vermont enacted a similar provision, Acts 1927, No. 81. Maine's law, Laws 1927, c. 210, and Minnesota's, Laws 1927, c. 412, § 61(b), applied only to violations.11 Rhode Island, Acts 1927, c. 1040, originally required proof only after accidents resulting from violations; Acts 1929, c. 1429, required proof in addition not only of persons violating certain laws but of all minors as well. In New Hampshire, Laws 1927, c. 54, security to cover a potential judgment was required on request of the plaintiff in an accident case, if fault appeared after preliminary inquiry.
10
In 1929 seven States enacted laws providing for the first time that driving privileges be suspended following an adverse judgment in damages. Vermont added to her earlier statute a provision suspending privileges of anyone against whom there was an outstanding judgment based on a traffic violation until proof was made of financial responsibility. Vt. Acts 1929, No. 76. Connecticut, Maine, and Wisconsin suspended the privileges of the judgment debtor until the judgment was satisfied. Conn.Acts 1929, c. 297, § 25;12 Me.Laws 1929, c. 209; Wis. Laws 1929, c. 76. In Connecticut, however, suspension was only to occur if the judgment remained unpaid for sixty days, and then only '(u)pon complaint * * * by any prevailing party' in the lawsuit. Iowa's law was substantially similar, giving the creditor control by providing that 'a transcript of such judgment * * * may be filed' to initiate suspension. Iowa Laws 1929, c. 118.13 California required court clerks to transmit to the vehicle administrator notice of judgments unpaid for fifteen days; the debtor's license and registration were thereupon to be suspended until both the debt was discharged and proof of financial responsibility was given. Cal.Stat.1929, c. 258, § 4. New York adopted a law materially the same as California's providing in addition that a discharge in bankruptcy should not relieve the judgment debtor of these requirements and also suspending privileges pending proof after conviction for certain violations. N.Y.Laws 1929, c. 695.
11
Abandoning the drive for a uniform compulsory-insurance law as not then feasible, the Commissioners on Uniform Laws in 1929 began work on a more limited financial-responsibility act. As finally approved by the Conference in 1932, the Uniform Automobile Liability Security Act combined features from several of the statutes already in force. Proof of financial responsibility was required to be maintained for a minimum of three years by four classes of persons: (1) those convicted of certain violations; (2) those wishing to obtain or renew driving privileges, and who had been at fault in two accidents of specified gravity during the preceding year; (3) minors; (4) those against whom a judgment of a certain magnitude had remained unsatisfied for fifteen days. The provisions regarding judgments followed those of California and New York: the court or clerk was to forward notice of all unsatisfied judgments, and the debtor's privileges were to be suspended until both satisfaction of the obligation, to the extent of the minimum required insurance amount, and proof of future responsibility. 11 U.L.A. 125 (1938).
12
The Uniform Act as such was adopted only in Hawaii, Pennsylvania, and Washington;14 its provisions regarding accidents and minors found little favor. Yet during the two decades following 1929 a large majority of States enacted one or another form of financial-responsibility law. Utah's first such statute, enacted in 1943, was typical of the most common enactment. Twelve other States and the District of Columbia adopted this same basic law;15 and, with respectively minor modifications, it was paralleled by five more16 in addition to the earlier California and New York laws. This law provided for suspension of privileges following certain convictions and after a judgment remained unpaid a specified time. Restoration in either case was conditioned on proof of future responsibility; in the case of a judgment, the debt must be discharged as well. The unpaid judgment was required to be forwarded on the initiative of the court or clerk. Six States adopted laws differing from Utah's principally in that proof of future responsibility, without satisfaction of the debt, was sufficient to terminate suspension.17 In addition, most of these statutes provided that a discharge in bankruptcy should not relieve the judgment debtor from suspension.18
13
Indiana and Maryland in 1931, like Connecticut and Iowa before, placed control of suspension for unpaid judgments in the hands of the creditor by requiring that notice be forwarded to the administrator only on the creditor's request. Ind.Acts 1931, c. 179, § 2; Md.Laws 1931, c. 498. Neither specified the effect of a discharge. Maryland's law was in other respects like that of Utah; Indiana's, which required only proof of future responsibility and not discharge for reinstatement, was replaced in 1935 by a statute on the Utah model. In Massachusetts suspension followed when the registrar was 'satisfied by such evidence as he may require' that the judgment was sixty days unpaid. Mass.Acts 1932, c. 304.19 Delaware's law was similar in this respect. Del.Laws 1931, c. 14. New Hampshire's 1937 law required proof of future responsibility following certain convictions and certain accidents but not after unpaid judgments; it required those involved in accidents not only to provide proof for the future but to deposit security to cover the past accident as well. N.H.Laws 1937, c. 161.20 Provisions requiring security after accidents, but without the need of proof for the future, were adopted by a number of other States in the next few years.21
14
New York's law, one source of most of the early legislation, underwent a gradual evolution after its enactment. In 1936 the legislature provided that if proof of future responsibility was given the maximum period of suspension should be three years.22 The same year the statute was further amended to add a novel provision. If the judgment creditor consented, and if proof of future responsibility was given, a defaulting judgment debtor might continue to enjoy driving privileges for six months, and thereafter so long as consent was not withdrawn.23 In 1937 it was made clear the requirement of judgment payment did not apply to insured owners or drivers.24 In 1939 report of the unpaid judgment was made dependent upon request by the creditor.25 Finally, in 1941, New York adopted the New Hampshire requirement of proof and security for damages arising out of certain accidents.26 The 1941 law also provided, as a number of States had done before,27 for payment in installments, with suspension upon default of payments.
15
It was against this background that the Uniform Act of 1932 was withdrawn for further study in light of the States' extensive experience. Handbook of the National Conference of Commissioners on Uniform State Laws (1943), p. 69. The result of this study was an entirely revised model act, indorsed by the National Conference, which now appears as Chapter 7 of the Uniform Vehicle Code of 1956.28
16
The new Uniform Code reflects most of the changes wrought in New York's law from 1929 to 1941. It requires persons involved in certain accidents to deposit security to cover the past if they were not insured. It requires proof of future responsibility from those convicted of certain violations and from those owing judgments unsatisfied after thirty days. In addition, unless insured, the judgment debtor must satisfy the obligation, to the extent of the minimum amounts of financial responsibility required, before his privileges are restored. Installment payments, until default, are allowed. Bankruptcy is no release; unpaid judgments are to be reported only on request by the judgment creditor; with the creditor's consent the debtor may be permitted to drive for six months, if he shows financial responsibility, and longer until consent is revoked.
17
The material provisions of the new Uniform Code with respect to financial responsibility are currently in effect in twenty-one States, including Utah, and in the District of Columbia.29 Fifteen other States have enacted statutes substantially similar except that unpaid judgments are reported by the court or clerk without request by the creditor.30 Nine more retain statutes differing from the last foregoing principally in the absence of provisions for restoration of privileges without payment on the consent of the creditor; these are in substance the same as the common statute earlier in force in Utah, except that security is usually required in the event of accident.31 Vermont's statute, requiring only proof and not payment to reinstate privileges after judgment, differs in other particulars as well.32 Maine and New Hampshire make no provisions for judgments, suspending only after accidents and violations.33 In Massachusetts and New York insurance or its equivalent is compulsory.34
18
Twenty years ago, the Court had before it the New York variant of this legislation. This provided for suspension of license and registration whenever a judgment remained unpaid for fifteen days, as certified by the county clerk on his initiative. Proof of future responsibility was required for reinstatement; unless three years had elapsed, so was satisfaction of the judgment other than by discharge in bankruptcy. In 1936 the statute was amended to terminate the suspension with creditor consent on proof of responsibility, and in 1939 to require certification of the judgment only on request by the creditor or his attorney. The Court held that this statute, as it stood before 1936, was an appropriate measure to promote highway safety and did not violate the Due Process Clause of the Fourteenth Amendment. Because the statute was not designed to aid collection of debts but to enforce a policy against irresponsible driving, and because this policy would be frustrated if negligent drivers could avoid the statute by 'the simple expedient of voluntary bankruptcy,' no conflict with the Bankruptcy Act was found. The Court expressly left unanswered the claim that the amendments giving the creditor control over initiation and duration of the suspension were contrary to the Bankruptcy Act. Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941).
19
The Utah law here challenged is in substance that which the Court did not have to pass on in Reitz v. Mealey, with two exceptions. Not only is the creditor permitted to initiate, lift, and restore suspension as under the New York amendments; he is also given power to restore suspension for default on payment of installments, and, if the judgment is not satisfied, the suspension is permanent rather than limited to three years. Appellant urges that the Utah creditor's added control over the license and registration procedures demonstrates that the State is acting as a collecting agent for the creditor rather than furthering an interest in highway safety, and that to make suspension perpetual rather than for three years only renders the collection pressure more effective. Do these differences make a constitutional difference, in light of the considerations that underlay the decision in the Reitz case?
20
Section 17 of the Bankruptcy Act, 11 U.S.C. § 35, 11 U.S.C.A. § 35, provides that 'A discharge in bankruptcy shall release a bankrupt from all of his provable debts,' with exceptions not here material. See also 11 U.S.C. § 1(15), 11 U.S.C.A. § 1(15). A discharge relieves the bankrupt 'from legal liability to pay a debt that was provable,' Zavelo v. Reeves, 227 U.S. 625, 629, 33 S.Ct. 365, 367, 57 L.Ed. 676 (1913); it is a valid defense in an action brought in a state court to recover the debt. A State cannot deal with the debtor-creditor relationship as such and circumvent the aim of the Bankruptcy Act in lifting the burden of debt from a worthy debtor and affording him a new start. The limitations imposed upon the States by the Act raise constitutional questions under the Supremacy Clause, Art. VI Thus, a discharge does not free the bankrupt from all traces of the debt, as though it had never been incurred. This Court has held that a moral obligation to pay the debt survives discharge and is sufficient to permit a State to grant recovery to the creditor on the basis of a promise subsequent to discharge, even though the promise is not supported by new consideraton. Zavelo v. Reeves, supra. The theory, the Court declared, is that 'the discharge destroys the remedy but not the indebtedness,' 227 U.S., at 629, 33 S.Ct. at 367.35 And in Spalding v. New York ex rel. Backus, 4 How. 21, 11 L.Ed. 858 (1846), under an earlier bankruptcy law,36 the Court held that a discharge did not prevent the State from collecting a fine for contempt in violation of an injunction issued to aid in the execution of a judgment debt, although the fine was turned over to the creditor. States are not free to impose whatever sanctions they wish, other than an action of debt or assumpsit, to enforce collection of a discharged debt. But the lesson Zavelo and Spalding teach is that the Bankruptcy Act does not forbid a State to attach any consequence whatsoever to a debt which has been discharged.37
21
The Utah Safety Responsibility Act leaves the bankrupt to some extent burdened by the discharged debt. Certainly some inroad is made on the consequences of bankruptcy if the creditor can exert pressure to recoup a discharged debt, or part of it, through the leverage of the State's licensing and registration power. But the exercise of this power is deemed vital to the State's well-being, and, from the point of view of its interests, is wholly unrelated to the considerations which propelled Congress to enact a national bankruptcy law. There are here overlapping interests which cannot be uncritically resolved by exclusive regard to the money consequences of enforcing a widely adopted measure for safeguarding life and safety.
22
When Reitz v. Mealey was in the District Court, 34 F.Supp. 532 (N.D.N.Y.1940), Judge Learned Hand upheld the statute, as did this Court, without deciding the validity of the creditor-control amendments; but in passing he dealt with the realities of the situation and demonstrated the thin difference they made. As for the 1936 amendment, 'The original statute in fact gave the creditor power at any time to restore the license by a complete satisfaction of the judgment; and the amendment merely added to this by enabling him to withdraw his consent, once given, after six months.' The 1939 amendment
23
'merely relieved the clerk of an irksome duty. He had been obliged to find out whenever a judgment had remained unpaid for fifteen days, whether it was for damages due to negligent driving. Instead of this the amendment set up an automatic system depending upon the creditor's interest in starting the clerk into action. This distinction is, however, more apparent than real because under the section as it stood before 1939, the creditor had the same incentive and he was as likely as thereafter to advise the clerk of the judgment * * *. (t)he chance that the clerk would have acted without being prodded by the creditor must have been very remote.' 34 F.Supp., at 535.
24
This Court was of course aware of the practical pressures of the New York statute as a device to collect debts discharged in bankruptcy; the argument was pressed upon it in the dissent. Yet the statute was upheld. Why? Because the 'police power' of a State, especially when exerted for the protection of life and limb, is as pervasive as any of the reserved powers of the States and should be respected unless there is a clear collision with a national law which has the right of way under the Supremacy Clause of Article VI. The facts that the consequences of the New York Safety Act may in fact have subjected a debtor to the payment of money of which as an obligation in the creditor-debtor relation he was quit did not lead this Court to hold that the State had intruded into the bankruptcy domain or subverted the purpose of the bankruptcy law. Why? At the heart of the matter are the complicated demands of our federalism.
25
Are the differences between the Utah statute and that of New York so significant as to make a constitutionally decisive difference? A State may properly decide, as forty-five have done, that the prospect of a judgment that must be paid in order to regain driving privileges serves as a substantial deterrent to unsafe driving. We held in Reitz that it might impose this requirement despite a discharge, in order not to exempt some drivers from appropriate protection of public safety by easy refuge in bankruptcy.38 To make suspension of privileges dependent upon the creditor's request, as twenty-one have done, and as Congress has done for the District of Columbia, is nothing more than to make explicit what happens in the real world regardless of the statutory language. Even if the creditor-request provision makes suspension more likely, we see no reason why a State may not so provide in order that the deterrent be made more effective by authorizing the party most likely to be interested in the enforcement of the sanction to set it in motion. Nor do we think in excess of their power the action of thirty-five States that have attempted, as Congress has done, to authorize the creditor to lift and restore the suspension, or the forty-three that, again as Congress, have provided that in the absence of creditor consent the suspension shall last forever unless the judgment is extinguished. To whatever extent these provisions make it more probable that the debt will be paid despite the discharge, each no less reflects the State's important deterrent interest. Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia; we do not believe Utah's identical statute conflicts with it either.
26
Utah is not using its police power as a devious collecting agency under the pressure of organized creditors. Victims of careless car drivers are a wholly diffused group of shifting and uncertain composition, not even remotely united by a common financial interest. The Safety Responsibility Act is not an Act for the Relief of Mulcted Creditors. It is not directed to bankrupts as such. Though in a particular case a discharged bankrupt who wants to have his rightfully suspended license and registration restored may have to pay the amount of a discharged debt, or part of it, the bearing of the statute on the purposes served by bankruptcy legislation is essentially tangential.
27
There are no apothecary's scales by which the differences between the Utah and New York statutes can be constitutionally weighed. The matter rests in judgment. That organon of adjudication leads us to conclude that the differences are too insubstantial, too tenuous as a matter of practical reality, to reach constitutional solidity.
28
Affirmed.
29
Mr. Justice WHITTAKER took no part in the decision of this case.
30
Mr. Justice STEWART, concurring in part.
31
For the reasons convincingly set forth in the dissenting opinion of The Chief Justice, I agree with him that a three-judge court should not have been convened in this case, and that consequently this appeal is not properly before us. I would therefore dismiss the appeal. Thompson v. Whittier, 365 U.S. 465, 81 S.Ct. 712, 5 L.Ed.2d 704. The Court, however, holds that this appeal is properly here, and on the merits of the litigation I agree with the Court's conclusion.
32
Mr. Chief Justice WARREN, dissenting.
33
We are confronted here with a threshold question of jurisdiction which should, in my opinion, be dispositive of the case. The question is whether a three-judge court was properly convened for the trial of this case.1 Although the issue was not considered by the courts below and had not been raised by the parties here, it is our duty to take independent notice of such matters and to vacate and remand any decree entered by an improperly constituted court.2 I cannot agree with the test formulated by the opinion of the Court because I believe that for both lower federal courts and for ourselves, it will raise more problems than it will solve, and because I do not see any basis for it either in the statute or in our prior decisions.
34
When to convene a three-judge court has always been a troublesome problem of federal jurisdiction and a review of the cases involving that question illustrates the difficulties the lower federal courts have had in applying the principles formulated by this Court.3 However, one rule has been clear: where a state statute is attacked as violating directly some provision of the Federal Constitution, a three-judge court must be convened.4 Equally clear has been the principle that where the state statute is alleged to be inoperative because of the presence of a federal statute which the Supremacy Clause of the Constitution declares pre-emptive of the state law, a single judge may dispose of the case.5 That, I submit, is precisely the situation here. A case essentially similar to ours is Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552. There the State had enacted a provision regulating the minimum price at which certain state-owned land had to be sold when disposed of by the State. When the State attempted to sell timber located on such land at a price permitted by the state enactment, the sale was sought to be enjoined on the ground that the price required by the state law exceeded the limits of the Federal Emergency Price Control Act and was therefore invalid under the Supremacy Clause. To the State's contention that the complaint stated a cause of action required to be heard by a three-judge court, this Court, speaking through Mr. Justice Black, stated:
35
'* * * here the complaint did not challenge the constitutionality of the State statute but alleged merely that its enforcement would violate the Emergency Price Control Act. Consequently a three-judge court is not required. * * *'6
36
So in the case before us, 'the complaint did not challenge the constitutionality of the * * * (Utah Financial Responsibility Act) but alleged that its enforcement would violate the * * * (Bankruptcy Act). Consequently, a three-judge court * * * (was) not required.' However, the Court's opinion adds an additional distinction. Its reasoning is that if there is a preliminary question of statutory construction, either of the state or federal statute alleged to be in conflict, only one judge is required. On the other hand, if the court is able to go 'directly' to the constitutional question (i.e., whether the state statute must fall under the Supremacy Clause), three judges are required. I do not believe that there was any greater need for interpretation of the statute or of congressional purpose in Bowles than there is in determining the scope of the Bankruptcy Act in providing for the discharge of debts in the case before us. I can find no real distinction between the two cases and do not believe that one can be found in the statutes7 or any place else. It would, in fact, be difficult to conceive of any case which would not call for an initial interpretation of the legislation or an inquiry into its purpose or policy before a court could determine if the state and federal statutes are in conflict.8 The instant case is no exception, and, in my opinion, the Court's opinion refutes the very test which it establishes.9 The difference of opinion on the merits in this case among the members of the Court stems from the meaning and purpose of § 17 of the Bankruptcy Act,10 and it is evident that the Court's holding in Reitz v. Mealey,11 referred to by the Court in the instant case, considered the purposes of both the state legislation and the federal bankruptcy scheme. Indeed, the effect of the discharge in bankruptcy affords considerable latitude for construction, as noted by this and other courts on numerous occasions.12
37
Moreover, I believe that it is tacit in the Supremacy Clause itself that a preliminary inquiry must always be made into the policy behind the legislation alleged to be in conflict before a final analysis of whether the federal legislation is pre-emptive can be made.13 But perhaps the most practical objection to the test formulated by the Court is that it is plainly unworkable. Application of that test by lower federal courts will, in my opinion, create additional confusion to an already difficult area of federal jurisdiction. Because I think that we should follow our past decisions,14 and not impose technical and unworkable distinctions upon them, I would dismiss this case for lack of jurisdiction in this Court.15 However, because the Court has held otherwise and has decided the merits of the alleged conflict, I believe it is my duty also to reach the substantive questions.
38
On the merits, I find myself in agreement with most of Mr. Justice FRANKFURTER'S opinion for the Court. State drivers' financial-responsibility laws intended to discourage careless driving and to promote safety in automobile traffic for the protection of its citizens are essential to the State's well-being and wide latitude should be allowed in the formulation of such laws. Accordingly, I am reluctant to say that a State has exceeded its powers in this area. I cannot, however, agree with the Court's treatment of that portion of the Utah Act which gives to a creditor the discretion of determining if and when driving privileges may be restored by the State to a person whose license has been revoked due to his failure to satisfy a judgment incurred as a result of a previous automobile accident.16
39
The essential inquiry in a case such as this is not only whether the State has acted in a field in which it has a legitimate interest to achieve goals inherent in its police power. Rather, our task is also to ascertain whether the provisions of the state act are compatible with the policy expressed in the federal legislation with which the state law is alleged to be in conflict.17 If there is no escape from a finding of incompatibility, the Supremacy Clause of the United States Constitution demands that the conflicting state law and policy must yield to the federal statute.18 This demand is made no less apparent by a determination that the state statute has been enacted pursuant to an otherwise valid exercise of state power.19
40
In Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21, this Court upheld the New York variant of this legislation, according to the Court's opinion in the instant case, '(b)ecause the statute was not designed to aid collection of debts but to enforce a policy against irresponsible driving, and because this policy would be frustrated if negligent drivers could avoid the statute by 'the simple expedient of voluntary bankruptcy' * * *.' Here, however, the Court decides a question that was deliberately not canvassed in Reitz, namely, the validity of the provision authorizing creditor control over restoration of the license.
41
In my view, the reasons expressed for upholding the New York legislation in Reitz do not apply to this authorization.20 The State has a legitimate interest in requiring proof of financial responsibility from drivers who have not responded in damages for an accident; and inherent in that interest is the right to demand as a requisite to restoration of driving privileges, that all prior judgments for automobile accidents be paid.21 To this extent the State advances an interest independent of the purposes of the bankruptcy laws; the interests of the federal and state governments are compatible and hence no conflict with the Federal Act exists. However, where the State relinquishes its right to demand that prior judgments be paid, and in its place authorizes the creditor, through giving or withholding his consent to determine whether the judgment debtor may be restored to his driving privileges, the purposes of the financial-responsibility laws are no longer being served. Instead of the legitimate determination to keep all negligent financially irresponsible drivers off the highways, the State is, ostensibly through its police power, giving the creditor a powerful collection device for recovery of a discharged debt.22 The emphasis has been shifted to an entirely different purpose and, in my opinion, this change is crucial. The effect of the law is to authorize a private individual, for his own financial interest, to determine whether and when a bankrupt may drive on the State's highways. In departing from its legitimate interest in promoting highway safety and thus substituting the interests of individual creditors, the State brings its law into direct conflict with the policy of the federal statute which is designed to relieve bankrupt debtors from their prior financial obligations. In these circumstances I believe it is our duty to declare that portion of the state law invalid under the Supremacy Clause of the United States Constitution.
42
This does not mean that I would strike the entire statute; the Utah Act incorporates a separability clause23 which has never been interpreted by the Supreme Court of Utah. How it would view this situation cannot be foretold, and it is not within our province to undertake to do so. At all events, no great burden would be placed on the State. All it need do is to assume in its own way its responsibilities for determining which drivers should be entrusted to use its highways rather than to delegate that power to a private judgment creditor whose debtor has been discharged of his debt by federal law.
43
For the reasons stated, I must dissent.
44
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.
45
I agree that this case was properly heard by a three-judge District Court but dissent from the Court's holding that Utah may, through its Motor Vehicle Safety Responsibility Act, enforce the payment of a judgment already discharged under the Federal Bankruptcy Act. Section 17 of the Bankruptcy Act provides that 'discharge in bankruptcy shall release a bankrupt from all of his provable debts,'1 and this Court has held that a tort judgment, such as that against appellant, arising out of an automobile accident, is a provable debt within the meaning of that section.2 Despite this provision, however, the Court upholds a Utah law which expressly provides that 'A discharge in bankruptcy following the rendering of any * * * judgment (arising out of an automobile accident) shall not relieve the judgment debtor' of his obligation to pay that judgment as a condition of avoiding permanent cancellation of his driving license.3 The effect of enforcement of the Utah law against this appellant is to deny him the federal immunity given by § 17 of the Bankruptcy Act an effect which makes the law of Utah rather than the law of Congress 'The supreme Law of the Land.' This is true because the plain and inevitable effect of the Utah statutory scheme is to create a powerful weapon for collection of a debt from which this bankrupt has been released by federal law. And particularly where, as here, the bankrupt's very livelihood depends upon his retaining a driver's license, he has no real choice under this Utah statute but to make arrangements to pay his judgment creditor to avoid permanent loss of his license. That, of course, means that he must agree to pay the very debt from which he was discharged by the bankruptcy proceeding, and that he must forego the very benefits for which Congress passed the Bankruptcy Act. It also means that a Utah automobile-accident judgment creditor will be given a decided advantage over all other creditors suffering loss from the bankruptcy in that only he can prove his claim, share in the distribution of the bankrupt's estate and still, at the same time, retain the power to force the bankrupt to pay the rest of his claim.
46
This action of the State, which takes away the benefits conferred on the bankrupt by Congress in § 17 of the Bankruptcy Act and gives special privileges to one class of creditors, cannot, in my judgment, be justified by reference to any 'complicated demands of our federalism.' There are plenty of ways for the States to protect their highways from reckless and irresponsible drivers without running roughshod over immunities that the United States, acting through a specifically granted, exclusive federal power, has chosen to give its citizens. But even if there were not such ways, I see no reason why the Court is not required to settle this conflict between Utah law and federal law in the way that the Constitution requires all such conflicts to be decided—that is, by a simple application of the Supremacy Clause of the Federal Constitution. The Court chooses instead to uphold the law of Utah on the basis of its previous decision in Reitz v. Mealey,4 a decision which I thought then and still think now to be wrong even on the much narrower statute which was sustained on much narrower grounds in that case. If this case involved the same kind of limited statute upheld in Reitz I could acquiesce on the ground that the settled construction of a federal statute should not ordinarily be disturbed.5 I can see no justification, however, for expanding the holding in that case so as to uphold this statute which makes a far more serious state encroachment upon immunities granted by discharge in federal bankruptcy proceedings.6
47
The Bankruptcy Act serves a highly important purpose in American life. Without the privileges it bestows on helplessly insolvent debtors to make a new start in life, many individuals would find themselves permanently crushed by the weight of obligations from which they could never hope to remove themselves and the country might, therefore, be deprived of the value of the endeavors of many otherwise useful citizens who simply would have lost their incentive for constructive work. I cannot agree with a decision which leaves the States free—subject only to this Court's veto power—to impair such an important and historic policy of this Nation as is embodied in its bankruptcy laws. I therefore respectfully dissent.
1
This Court has a number of times considered alleged conflicts between the Bankruptcy Act and state insolvency laws, or other laws designed to affect the debtor-creditor relationship as such. E.g., Pobreslo v. Joseph M. Boyd Co., 287 U.S. 518, 53 S.Ct. 262, 77 L.Ed. 469 (1933); International Shoe Co. v. Pinkus, 278 U.S. 261, 49 S.Ct. 108, 73 L.Ed. 318 (1929). See Williston, The Effect of a National Bankruptcy Law Upon State Laws, 22 Harv.L.Rev. 547 (1909). In addition, several courts have been confronted with possible conflicts between the Bankruptcy Act and other laws. E.g., Spalding v. New York ex rel. Backus, 4 How. 21, 11 L.Ed. 858 (1846) (contempt for defying injunction in aid of debt later discharged); In re Hicks, 133 F. 739 (N.D.N.Y.1905) (fireman suspended for nonpayment of discharged debt); Public Finance Corp. of Lynchburg v. Londeree, 200 Va. 607, 106 S.E.2d 760 (1959) (financial statement from borrower to lender inadmissible in bankruptcy proceeding). But there are relatively few reported cases in this Court or any other in which such a conflict was asserted with state laws designed to protect health, safety, or the public peace, and all those found deal with automobile financial security laws. Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941); In re Locker, 30 F.Supp. 642 (S.D.N.Y.1939); Munz v. Harnett, 6 F.Supp. 158 (S.D.N.Y.1933); In re Perkins, 3 F.Supp. 697 (N.D.N.Y.1933); Doyle v. Kahl, 242 Iowa 153, 46 N.W.2d 52 (1951); Ellis v. Rudy, 171 Md. 280, 189 A. 281 (1937); De Vries v. Secretary of State, 329 Mich. 68, 44 N.W.2d 872 (1950); Smith v. Hayes, 133 N.E.2d 443 (Ohio Com.Pl.1955).
2
Utah Laws 1951, c. 71, as amended, Uath Code Ann., 1953, Tit. 41, c. 12.
3
Utah Code Ann., 1953, Tit. 41, c. 1, Art. 3.
4
Id., 41—6—158.
5
Id., Tit. 41, c. 6, Art. 16.
6
Id., Tit. 41, c. 2.
7
Id., Tit. 41, c. 6, Arts. 1—15.
8
Id., 41—12—8.
9
Sustained in In re Cardinal, 170 Cal. 519, 150 P. 348, L.R.A.1915F, 850 (1915).
10
E.g., N.J.Laws 1916, c. 136; N.Y.Laws 1922, c. 612. See Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596 (1924); Willis v. City of Fort Smith, 121 Ark. 606, 611, 182 S.W. 275 (1916); Opinion of the Justices, 81 N.H. 566, 568, 129 A. 117, 118—119, 39 A.L.R. 1023 (1925), and cases cited; Annot., 22 A.L.R. 230 (1923).
11
North Dakota (Laws 1929, c. 163) adopted a similar law.
12
This Act was repealed by Conn.Acts 1931, c. 82, § 294a, and the 1925 provision for proof following certain accidents was not reenacted. Id., § 295a.
13
South Dakota (Laws 1933, c. 144) adopted a similar law.
14
Hawaii Laws 1933, c. 166; Pa.Laws 1933, No. 110; Wash.Laws 1939, c. 158.
15
Alabama (Laws 1947, No. 276); District of Columbia (49 Stat. 167 (1935)); Idaho (Laws 1939, c. 117); Illinois (Laws 1938 (1st sp. sess.), p. 51); Indiana (Acts 1935, c. 113); Kentucky (Acts 1936, c. 70); Michigan (Acts 1933, No. 203); Missouri (Laws 1945, p. 1207); Montana (Laws 1937, c. 129); Nebraska (Laws 1931, c. 108); North Dakota (Laws 1939, c. 167); Oregon (Laws 1935, c. 434); Utah (Laws 1943, c. 68); West Virginia (Acts 1935, c. 61). The ultimate source of these laws seems to have been a bill sponsored by the American Automobile Association as early as 1928. See Association of Casualty & Surety Executives, Comments on 'Report by the Committee to Study Compensation for Automobile Accidents to the Columbia University Council for Research in the Social Sciences' (1932), pp. 14—15.
16
Arizona (Laws 1935, c. 45) limited suspension to a maximum of five years, and Kansas (Laws 1939, c. 86) to three. Virginia (Acts 1932, c. 272) required satisfaction of the debt before reinstatement, but after one year proof alone was sufficient. Virginia did not provide for suspension and proof following violations. New Jersey (Laws 1929, c. 116, as amended, Laws 1931, c. 169) and New Mexico (Laws 1947, c. 201) required proof after certain accidents as well. Arizona did not require the clerk to give notice of unpaid judgments; suspension was ordained 'on report' of failure to pay.
17
Georgia (Laws 1945, No. 332), North Carolina (Laws 1931, c. 116), and apparently Colorado (Laws 1935, c. 163. The section title reads 'and,' but the text 'or'), restored privileges on either proof or satisfaction rather than both; Minnesota (Laws 1933, c. 351), Ohio (Laws 1935, p. 218), and Wisconsin (Laws 1941, c. 206) in proof without more. In Ohio and Wisconsin, suspension terminated automatically after one year. Ohio after 1943 (p. 658) required satisfaction but not proof and extended suspension to five years. Georgia and North Carolina did not require proof after violations.
18
Alabama, Arizona, California (Stat. 1937, c. 840), Colorado, District of Columbia, Idaho, Illinois, Indiana, Kansas, Kentucky, Michigan, Missouri, Montana, New Jersey (Laws 1941, c. 296), New Mexico, New York, Oregon, Utah, and West Virginia.
19
This law extended only to property judgments, and only satisfaction of the debt, not proof of future ability to respond, was required.
20
Maine (Laws 1941, c. 255), Michigan (Acts 1943, No. 248), and New York (Laws 1941, c. 872), enacted comparable accident provisions. Maine at the same time repealed its requirements pertaining to unpaid judgments.
21
Colorado (Laws 1947, c. 124); Florida (Laws 1947, c. 23626); Illinois (Laws 1945, p. 1078); Indiana (Acts 1943, c. 175); Maryland (Laws 1945, c. 456); Minnesota (Laws 1945, c. 285); Nevada (Laws 1949, c. 127); Tennessee (Acts 1949, c. 75); Wisconsin (Laws 1945, c. 375).
22
N.Y.Laws 1936, c. 293.
23
N.Y.Laws 1936, c. 448.
24
N.Y.Laws 1937, c. 463.
25
N.Y.Laws 1939, c. 618.
26
N.Y.Laws 1941, c. 872.
27
Arizona, California (Stat.1935, c. 591; see id., p. 159), Colorado, District of Columbia, Idaho, Illinois, Indiana (1935), Kansas, Kentucky, Maryland, Michigan, Montana, Nebraska, New Jersey, North Dakota (1939), Ohio, Oregon, and West Virginia.
28
National Committee on Uniform Traffic Laws and Ordinances, Uniform Vehicle Code (1956), §§ 7—101 to 7—505; see Handbook of the National Conference of Commissioners on Uniform Laws (1946), p. 131.
29
Alabama (Laws 1951, No. 704, as amended, Ala.Code, 1940, as recompiled 1958, Tit. 36, §§ 74(42)—74(83). The 1959, amendment (Laws, No. 72) limited suspension to a maximum of three years); Arkansas (Acts 1953, No. 347, Ark.Stat., 1947 (1957 replacement), Tit. 75, c. 14); District of Columbia (68 Stat. 120 (1954), as amended 72 Stat. 957 (1958), D.C.Code, 1961, Tit. 40, c. 4); Florida (Laws 1957, c. 57—147, Fla.Stat., 1959, c. 324, F.S.A. No specific provision is made regarding bankruptcy); Georgia (Laws 1956, No. 362, Ga.Code Ann., 1958, c. 92A—6. Georgia requires only payment and not proof for restoration after judgment and requires no proof to reinstate with creditor consent. There is no provision regarding bankruptcy. From 1951 (Laws, No. 386) to 1956, Georgia's financial-responsibility provision required security after accidents and proof after certain violations.); Hawaii (Laws 1949, c. 393, Hawaii Rev.Laws, 1955, c. 160, part III); Kansas (Laws 1957, c. 68, Kan.Gen.Stat., 1949 (Supp.1959), c. 8, Art. 7); Louisiana (Acts 1952, No. 52, LSA—Rev.Stat., 1950 (1960 Pocket Part), Tit. 32, c. 5); Maryland (Laws 1931, c. 498, as amended, Md.Ann.Code. 1957, Art. 66 1/2, §§ 116—149. No provision is made for creditor consent to restoration before payment.); Mississippi (Laws 1952, c. 359, Miss.Code Ann., 1942, as recompiled 1956, Tit. 30, §§ 8285—01 to 8285—41); Montana (Laws 1951, c. 204, Mont.Rev.Code, 1947 (1954 replacement), Tit. 53, c. 4); Nevada (Laws 1957, c. 384, Nev.Rev.Stat., 1957, c. 485); New Mexico (Laws 1955, c. 182, N.M.Stat., 1953 (1960 replacement), Tit. 64, Art. 24); North Carolina (Laws 1953, c. 1300, N.C.Gen.Stat., 1959 Supp., c. 20, Art. 9A.
From Laws 1947, c. 1006, to 1953, North Carolina's law was substantially the same as now except that report of unpaid judgments was mandatory, and that proof rather than security was required in accident cases, but only as to unlicensed operators); Ohio (Laws 1951, p. 563, as amended, Page's Ohio Rev.Code Ann., 1954 and 1961 Supp., c. 4509); Oklahoma (Laws 1949, p. 347, Okla.Stat., 1951, Tit. 47, c. 14); Oregon (Laws 1955, c. 429, as amended, Ore.Rev.Stat., 1953 (1961 replacement part), c. 486. Proof as well as security is required after accident; the maximum suspension is five years.); Rhode Island (Laws 1952, c. 3002, R.I.Gen.Laws, 1956, Tit. 31, c. 32); South Dakota (Laws 1957, c. 212, S.D.Code, 1939 (Supp.1960), c. 44.03A. In 1953, c. 251, South Dakota had suspended licenses on notice from the creditor until the judgment was paid, or the creditor's consent was given.); Texas (Laws 1951, c. 498, Vernon's Tex.Civ.Stat.Ann., 1960, Art. 6701h.); Utah (Laws 1951, c. 71, as amended, Utah Code Ann., 1953, 41—12—1 to 41—12—41. Utah has only recently provided for proof after convictions, Laws 1961, c. 95.); West Virginia (Acts 1951, c. 130, W.Va. Code Ann., 1955, c. 17D).
30
Alaska (Laws 1959, c. 163, Alaska Comp.Laws Ann., 1949 (Supp.1959), Tit. 50, c. 8. Both a deposit and future proof are required in some accident cases.); Arizona (Laws 1951, c. 122, Ariz.Rev.Stat.Ann., 1956, Tit. 28, c. 7); Delaware (Laws 1951, c. 359, Del.Code Ann., 1953, Tit. 21, c. 29); Idaho (Laws 1947, c. 256, Idaho Code, 1947 (1957 replacement), Tit. 49, c. 15); Iowa (Laws 1947, c. 172, Iowa Code, 1958, c. 321A, I.C.A.); Kentucky (Acts 1946, c. 118, Ky.Rev.Stat., 1960, c. 187); Minnesota (Laws 1945, c. 285, as amended, Minn.Stat., 1953, c. 170); Missouri (Laws 1953, p. 569, Vernon's Ann.Mo.Stat., 1952 (Supp.1960), c. 303); Nebraska (Laws 1949, c. 178, Neb.Rev.Stat., 1943 (1960 reissue), c. 60, Art. 5); North Dakota (Laws 1947, c. 256, as amended, N.D. Century Code, 1960, c. 39—16); Pennsylvania (Laws 1945, No. 433, superseded by Laws 1959, No. 32, Art. XIV, Purdon's Pa.Stat.Ann., 1960, Tit. 75, c. 1, Art. XIV); South Carolina (Acts 1952, No. 723, S.C.Code, 1952 (Supp.1960), Tit. 46, c. 3.1); Virginia (Acts 1944, c. 384, in addition required both proof and security after accidents, and proof after suspensions authorized 'on any reasonable ground' and after release from institutions for insanity, drug addiction, etc. These provisions were dropped before the revision of 1958, c. 541, now Va.Code, 1950 (1958 replacement), Tit. 46.1, c. 6); Wisconsin (Laws 1957, c. 260, p. 302, Wis.Stat.Ann., 1958, c. 344); Wyoming (Laws 1947, c. 160, as amended, Wyo.Stat., 1957, Tit 31, c. 6).
31
California (Cal.Vehicle Code, 1960, Div. 7. No proof is required after convictions.); Colorado (Colo.Rev.Stat., 1953, c. 13, Art. 7); Connecticut (Acts 1951, No. 179, as amended, Conn.Gen.Stat., 1958, Tit. 14, c. 246, part VI. Privileges are suspended on entry of any judgment, until satisfied; after violations, until proof of future responsibility; and after accidents, unless security is deposited. There is no provision for notification by court or by creditor.); Illinois (Smith-Hurd's Ill.Ann.Stat., 1958, c. 95—1/2, c. 7); Indiana (Burns' Ind.Ann.Stat., 1952, Tit. 47, c. 10. Proof may be required after accidents in addition to security.); Michigan (Mich.Stat.Ann., 1960, §§ 9.2201 to 9.2232, Comp.Laws Supp.1956, §§ 257.501 257.532. Both deposit and proof are required after suspension for accidents.); New Jersey (N.J.Stat.Ann., 1961, Tit. 39, c. 6); Tennessee (Acts 1959, c. 277, Tenn.Code Ann., 1955 (Supp.1961), Tit. 59, c. 12. No provision is made for report of judgments by either court or creditor. Tennessee's first responsibility law, Acts 1949, c. 75, required security after accidents; Acts 1951, c. 206, added suspension until overdue judgments were discharged other than in bankruptcy.); Washington (Wash.Rev.Code, 1951 & 1959 Supp., c. 46.24).
32
Vt.Stat.Ann., 1959, Tit. 23, §§ 801—809. Proof is required after certain violations or unsatisfied judgments based on violations, and after certain accidents. When an accident is caused by a violation, a deposit is also required. No provision is made for reporting judgments.
33
Maine (Me.Rev.Stat., 1954 and Supp.1959, c. 22, §§ 75—82. Suspension is authorized after violations and accidents, or on 'any reasonable ground'; proof is required in all such cases, and security also in accidents.); New Hampshire (N.H.Rev.Stat.Ann., 1955, c. 268. Proof is required after violations, proof and security after accidents.).
34
Massachusetts (Mass.Gen.Laws Ann., 1958, c. 90, §§ 34A 34J. Suspension is also ordained when the registrar is 'satisfied by such evidence as he may require' that a property judgment is unpaid. Id., § 22A.); New York (N.Y.Vehicle & Traffic Law, 1960, Art. 6, §§ 310—321. New York's earlier law, similar to the 1956 Uniform Code is still in the books, id., §§ 330—368, although no one has been required to maintain proof under its previsions since 1957, id., § 346.)
35
See 1 Collier, Bankruptcy (14th ed. 1956), 17.27; 8 Remington, Bankruptcy (6th ed. 1955), § 3225; and cases cited.
36
Act of Aug. 19, 1841, c. 9, § 4, 5 Stat. 440, 444: a discharge and its certificate 'shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are proveable under this act, and shall be and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever * * *.'
37
A Georgia court held that a discharge does not destroy a landlord's right to evict for non-payment of rent, Carter v. Sutton ,147 Ga. 496, 94 S.E. 760 (1917). In Minnesota it was held that land equitably charged with the payment of a judgment debt was not released by the debt's discharge in bankruptcy, Evans v. Staalle, 88 Minn. 253, 92 N.W. 951 (1903). In Missouri a discharged debt was held chargeable to diminish an heir's share in the equitable accounting of an estate, Leach v. Armstrong, 236 Mo.App. 382, 156 S.W.2d 959 (1941). We intimate no opinion on the correctness of these decisions.
38
There has been an enormous increase in nonbusiness bankruptcy cases in recent years. In 1946, 8,566 such petitions were filed; in 1960, 97,750. Nonbusiness petitions were 74.7% of the total in 1940 and 88.8% in 1960. Hearings before Subcommittee of House Committee on Appropriations, on the Judiciary, 87th Cong., 1st Sess. 204. The tendency thus reflected has not slackened with time.
1
Pursuant to 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, providing for a three-judge court where an injunction is sought against the enforcement of a state statute upon the ground of its alleged unconstitutionality.
2
Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, 54 S.Ct. 372, 78 L.Ed. 1318; Gully v. Interstate Gas Co., 292 U.S. 16, 54 S.Ct. 565, 78 L.Ed. 1088. Direct appeal from a three-judge court is governed by 28 U.S.C. § 2253, 28 U.S.C.A. § 1253.
3
See the cases collected in Hart and Wechsler, The Federal Courts and the Federal System, 843 et seq. See also Ann., Three-Judge Court, 4 L.Ed.2d 1931 et seq.
4
Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616; Stratton v. St. Louis Southwestern R. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 35; Ex parte Northern Pac. R. Co., 280 U.S. 142, 50 S.Ct. 70, 74 L.Ed. 233.
5
Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (by implication); Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552; Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036; Lemke v. Farmers Grain Co. of Embden, N.D., 258 U.S. 50, 42 S.Ct. 244, 66 L.Ed. 458. The lower federal courts have also been unanimous in so holding. E.g., Bell v. Waterfront Commission, D.C., 279 F.2d 853; Penagaricano v. Allen Corp., 1 Cir., 267 F.2d 550; Cloverleaf Butter Co. v. Patterson, 5 Cir., 116 F.2d 227, rev'd on other grounds, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754; Pennsylvania Greyhound Lines, Inc., v. Board of Public Utility Comm'rs, D.C., 107 F.Supp. 521.
6
327 U.S., at 97, 66 S.Ct. at 441.
7
The sole determination for convening a three-judge court is whether the state statute is being attacked on the grounds of its unconstitutionality. 28 U.S.C. § 2281, 28 U.S.C.A. § 2281. The statute makes no distinction based on the absence of preliminary questions of interpretation. Moreover, this Court has, in the past, attempted to construe this statute rigidly because of our reluctance to enlarge our own mandatory duties of review and because of the serious drain that 'the requirement of three judges * * * entails * * * upon the federal judicial system * * *.' Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800.
8
See note 13, infra.
9
A great portion of the Court's opinion is devoted to a review of the purpose and intent of state-highway financial-responsibility laws. In addition, the Court considers, as it must, the scope of § 17 of the Bankruptcy Act. See ante, 369 U.S., pp. 169—171, 82 S.Ct., pp. 817—818. The Court concludes that there are 'overlapping interests' between the two pieces of legislation that need resolution. See ante, 369 U.S., p. 171, 82 S.Ct., p. 818.
10
As amended, 52 Stat. 851, 11 U.S.C. § 35, 11 U.S.C.A. § 35. This Section provides in part, 'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part * * *.'
11
314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21.
12
See Zavelo v. Reeves, 227 U.S. 625, 33 S.Ct. 365, 57 L.Ed. 676; Spalding v. New York ex rel. Backus, 4 How. 21, 11 L.Ed. 858 (1846) (decided under an earlier bankruptcy law); Parker v. United States, 1 Cir., 153 F.2d 66, 163 A.L.R. 379; In re Koronsky, 2 Cir., 170 F. 719; cf. Crawford v. Burke, 195 U.S. 176, 25 S.Ct. 9, 49 L.Ed. 147; Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754.
13
The application of the Supremacy Clause is increasingly becoming a matter of statutory interpretation—a determination of whether state regulation can be reconciled with the language and policy of federal legislation. See, e.g., United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447; Southern Pacific Co. v. State of Arizona, etc., 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915. Cf. International Union etc., Auto Workers v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651. Thus, the answers to questions put under the Supremacy Clause must largely be derived from the statute and the policy behind the federal legislation. See note 18, infra.
14
See note 5, supra.
15
28 U.S.C. § 1253, 28 U.S.C.A. § 1253. See Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800.
16
Thus, I believe that without the 'subject to' clause of Utah Code Ann., 1953, § 41—12—15, referring to the creditor-control provision of § 41—12—14(b), that Section would be valid.
17
Certainly the 'complicated demands of federalism' cannot prevent us from fulfilling this duty. In fact, the Constitution expressly provides that in this area of federal-state relations these complicated demands shall play no part. U.S.Const., Art. VI.
18
Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165; Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782.
19
See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230—231, 67 S.Ct. 1146, 91 L.Ed. 1447; Case v. Bowles, 327 U.S. 92, 101—102, 66 S.Ct. 438, 90 L.Ed. 552; Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 610—611, 47 S.Ct. 207, 71 L.Ed. 432. See also Munn v. State of Illinois, 94 U.S. 113, 24 L.Ed. 77. Cf. Southern Pacific Co. v. State of Arizona ex rel. Sullivan, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915.
20
The creditor controls in the revocation and restoration provisions are completely distinguishable, and I find no fault with that portion of the Act permitting the creditor to give notice of default in payment so as to initiate the revocation procedure. As to this strictly 'procedural' provision, Judge Hand's pronouncement in the lower court's opinion in Reitz v. Mealey, 34 F.Supp. 532 (D.C.N.D.N.Y.1940), is dispositive. However, for the reasons next stated in the text, the creditor control over restoration does not serve a procedural purpose; it is directly a matter of substance and, as such, it changes the whole purpose of the legislation.
21
See note 16, supra. See also, e.g., Cal. Vehicle Code, 1959, Div. 7, § 16371.
22
This aid is being given solely for the creditor's benefit. The State is in effect saying that it does not have an interest in preventing drivers who have been unable to meet their financial obligations from using the highways—as far as the State is concerned some may and others may not. The choice is delegated to the creditors. Hence, creditor X may have two outstanding judgments owing from two different individuals who have caused him damage in a highway accident. Although the State unquestionably has an equal interest in either allowing or disallowing use of the highway by these two debtors, X has the sole discretion to say to the State 'Debtor A may have his license back, but debtor B may not.'
23
Utah Code Ann., 1953, § 41—12—40.
1
11 U.S.C. § 35, 11 U.S.C.A. § 35.
2
Lewis v. Roberts, 267 U.S. 467, 45 S.Ct. 357, 69 L.Ed. 739.
3
Section 41—12—15 of the Utah Motor Vehicle Safety Responsibility Act, Utah Code Ann., 1953.
4
314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21.
5
Toolson v. New York Yankees, 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64. See also James v. United States, 366 U.S. 213, 230—235, 81 S.Ct. 1052, 1061—1063, 6 L.Ed.2d 246 (separate opinion concurring in part and dissenting in part).
6
Cf. United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290; Still v. Norfolk & Western R. Co., 368 U.S. 35, 82 S.Ct. 148, 7 L.Ed.2d 103.
| 78
|
369 U.S. 186
82 S.Ct. 691
7 L.Ed.2d 663
Charles W. BAKER et al., Appellants,v.Joe C. CARR et al.
No. 6.
Reargued Oct. 9, 1961.
Decided March 26, 1962.
Charles S. Rhyne, Washington, D.C., and Z. T. Osborn, Jr., Nashville, Tenn., for appellants.
Jack Wilson, Chattanooga, Tenn., for appellees.
Solicitor General Archibald Cox, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This civil action was brought under 42 U.S.C. §§ 1983 and 1988, 42 U.S.C.A. §§ 1983, 1988 to redress the alleged deprivation of federal constitutional rights. The complaint, alleging that by means of a 1901 statute of Tennessee apportioning the members of the General Assembly among the State's 95 counties,1 'these plaintiffs and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes,' was dismissed by a three-judge court convened under 28 U.S.C. § 2281, 28 U.S.C.A. § 2281 in the Middle District of Tennessee.2 The court held that it lacked jurisdiction of the subject matter and also that no claim was stated upon which relief could be granted. 179 F.Supp. 824. We noted probable jurisdiction of the appeal. 364 U.S. 898, 81 S.Ct. 230, 5 L.Ed.2d 193.3 We hold that the dismissal was error, and remand the cause to the District Court for trial and further proceedings consistent with this opinion.
2
The General Assembly of Tennessee consists of the Senate with 33 members and the House of Representatives with 99 members. The Tennessee Constitution provides in Art. II as follows:
3
'Sec. 3. Legislative authority—Term of office.—The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both dependent on the people; who shall hold their offices for two years from the day of the general election.
4
'Sec. 4. Census.—An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years.
5
'Sec. 5. Apportionment of representatives.—The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having two-thirds of the ratio shall be entitled to one member.
6
'Sec 6. Apportionment of senators.—The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district.'
7
Thus, Tennessee's standard for allocating legislative representation among her counties is the total number of qualified voters resident in the respective counties, subject only to minor qualifications.4 Decennial reapportionment in compliance with the constitutional scheme was effected by the General Assembly each decade from 1871 to 1901. The 1871 apportionment5 was preceded by an 1870 statute requiring an enumeration.6 The 1881 apportionment involved three statutes, the first authorizing an enumeration, the second enlarging the Senate from 25 to 33 members and the House from 75 to 99 members, and the third apportioning the membership of both Houses.7 In 1891 there were both an enumeration and an apportionment.8 In 1901 the General Assembly abandoned separate enumeration in favor of reliance upon the Federal Census and passed the Apportionment Act here in controversy.9 In the more than 60 years since that action, all proposals in both Houses of the General Assembly for reapportionment have failed to pass.10
8
Between 1901 and 1961, Tennessee has experienced substantial growth and redistribution of her population. In 1901 the population was 2,020,616, of whom 487,380 were eligible to vote.11 The 1960 Federal Census reports the State's population at 3,567,089, of whom 2,092,891 are eligible to vote.12 The relative standings of the counties in terms of qualified voters have changed significantly. It is primarily the continued application of the 1901 Apportionment Act to this shifted and enlarged voting population which gives rise to the present controversy.
9
Indeed, the complaint alleges that the 1901 statute, even as of the time of its passage, 'made no apportionment of Representatives and Senators in accordance with the constitutional formula * * *, but instead arbitrarily and capriciously apportioned representatives in the Senate and House without reference * * * to any logical or reasonable formula whatever.'13 It is further alleged that 'because of the population changes since 1900, and the failure of the Legislature to reapportion itself since 1901,' the 1901 statute became 'unconstitutional and obsolete.' Appellants also argue that, because of the composition of the legislature effected by the 1901 Apportionment Act, redress in the form of a state constitutional amendment to change the entire mechanism for reapportioning, or any other change short of that, is difficult or impossible.14 The complaint concludes that 'these plaintiffs and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes.'15 They seek a declaration that the 1901 statute is unconstitutional and an injunction restraining the appellees from acting to conduct any further elections under it. They also pray that unless and until the General Assembly enacts a valid reapportionment, the District Court should either decree a reapportionment by mathematical application of the Tennessee constitutional formulae to the most recent Federal Census figures, or direct the appellees to conduct legislative elections, primary and general, at large. They also pray for such other and further relief as may be appropriate.
I.
10
THE DISTRICT COURT'S OPINION AND ORDER OF DISMISSAL.
11
Because we deal with this case on appeal from an order of dismissal granted on appellees' motions, precise identification of the issues presently confronting us demands clear exposition of the grounds upon which the District Court rested in dismissing the case. The dismissal order recited that the court sustained the appellees' grounds '(1) that the Court lacks jurisdiction of the subject matter, and (2) that the complaint fails to state a claim upon which relief can be granted * * *.'
12
In the setting of a case such as this, the recited grounds embrace two possible reasons for dismissal:
13
First: That the facts and injury alleged, the legal bases invoked as creating the rights and duties relied upon, and the relief sought, fail to come within that language of Article III of the Constitution and of the jurisdictional statutes which define those matters concerning which United States District Courts are empowered to act;
14
Second: That, although the matter is cognizable and facts are alleged which establish infringement of appellants' rights as a result of state legislative action departing from a federal constitutional standard, the court will not proceed because the matter is considered unsuited to judicial inquiry or adjustment.
15
We treat the first ground of dismissal as 'lack of jurisdiction of the subject matter.' The second we consider to result in a failure to state a justiciable cause of action.
16
The District Court's dismissal order recited that it was issued in conformity with the court's per curiam opinion. The opinion reveals that the court rested its dismissal upon lack of subject-matter jurisdiction and lack of a justiciable cause of action without attempting to distinguish between these grounds. After noting that the plaintiffs challenged the existing legislative apportionment in Tennessee under the Due Process and Equal Protection Clauses, and summarizing the supporting allegations and the relief requested, the court stated that
17
'The action is presently before the Court upon the defendants' motion to dismiss predicated upon three grounds: first, that the Court lacks jurisdiction of the subject matter; second, that the complaints fail to state a claim upon which relief can be granted; and third, that indispensable party defendants are not before the Court.' 179 F.Supp., at 826.
18
The court proceeded to explain its action as turning on the case's presenting a 'question of the distribution of political strength for legislative purposes.' For,
19
'From a review of (numerous Supreme Court) * * * decisions there can be no doubt that the federal rule, as enunciated and applied by the Supreme Court, is that the federal courts, whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment.' 179 F.Supp., at 826.
20
The court went on to express doubts as to the feasibility of the various possible remedies sought by the plaintiffs. 179 F.Supp., at 827—828. Then it made clear that its dismissal reflected a view not of doubt that violation of constitutional rights was alleged, but of a court's impotence to correct that violation:
21
'With the plaintiffs' argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiffs the Court entirely agrees. It also agrees that the evil is a serious one which should be corrected without further delay. But even so the remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted doctrine that there are indeed some rights guaranteed by the Constitution for the violation of which the courts cannot give redress.' 179 F.Supp., at 828.
22
In light of the District Court's treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes.16 Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial.
II.
JURISDICTION OF THE SUBJECT MATTER.
23
The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration—what we have designated 'nonjusticiability.' The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not 'arise under' the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, § 2), or is not a 'case or controversy' within the meaning of that section; or the cause is not one described by any jurisdictional statute. Our conclusion, see 369 U.S., pp. 208—237, 82 S.Ct., pp. 705—720, infra, that this cause presents no nonjusticiable 'political question' settles the only possible doubt that it is a case or controversy. Under the present heading of 'Jurisdiction of the Subject Matter' we hold only that the matter set forth in the complaint does arise under the Constitution and is within 28 U.S.C. § 1343, 28 U.S.C.A. § 1343.
24
Article III, § 2, of the Federal Constitution provides that 'The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *.' It is clear that the cause of action is one which 'arises under' the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were 'so attenuated and unsubstantial as to be absolutely devoid of merit,' Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795, or 'frivolous,' Bell v. Hood, 327 U.S. 678, 683, 66 S.Ct. 773, 776, 90 L.Ed. 939.17 That the claim is unsubstantial must be 'very plain.' Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271, 274, 43 S.Ct. 540, 541, 67 L.Ed. 977. Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the subject matter. We said in an earlier voting case from Tennessee: 'It is obvious * * * that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States.' Swafford v. Templeton, 185 U.S. 487, 493, 22 S.Ct. 783, 785, 46 L.Ed. 1005. 'For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.' Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776. See also Binderup v. Pathe Exchange, 263 U.S. 291, 305—308, 44 S.Ct. 96, 98—99, 68 L.Ed. 308.
25
Since the complaint plaintly sets forth a case arising under the Constitution, the subject matter is within the federal judicial power defined in Art. III, § 2, and so within the power of Congress to assign to the jurisdiction of the District Courts. Congress has exercised that power in 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3):
26
'The district courts shall have original jurisdiction of any civil action authorized by law18 to be commenced by any person * * * (t)o 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 * * *.'19
27
An unbroken line of our precedents sustains the federal courts' jurisdiction of the subject matter of federal constitutional claims of this nature. The first cases involved the redistricting of States for the purpose of electing Representatives to the Federal Congress. When the Ohio Supreme Court sustained Ohio legislation against an attack for repugnancy to Art. I, § 4, of the Federal Constitution, we affirmed on the merits and expressly refused to dismiss for want of jurisdiction 'In view * * * of the subject-matter of the controversy and the Federal characteristics which inhere in it * * *.' Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 570, 36 S.Ct. 708, 710, 60 L.Ed. 1172. When the Minnesota Supreme Court affirmed the dismissal of a suit to enjoin the Secretary of State of Minnesota from acting under Minnesota redistricting legislation, we reviewed the constitutional merits of the legislation and reversed the State Supreme Court. Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795. And see companion cases from the New York Court of Appeals and the Missouri Supreme Court, Koenig v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805; Carroll v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807. When a three-judge District Court exercising jurisdiction under the predecessor of 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3), permanently enjoined officers of the State of Mississippi from conducting an election of Representatives under a Mississippi redistricting act, we reviewed the federal questions on the merits and reversed the District Court. Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131, reversing 1 F.Supp. 134. A similar decree of a District Court, exercising jurisdiction under the same statute, concerning a Kentucky redistricting act, was reviewed and the decree reversed. Mahan v. Hume, 287 U.S. 575, 53 S.Ct. 223, 77 L.Ed. 505, reversing 1 F.Supp. 142.20
28
The appellees refer to Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, as authority that the District Court lacked jurisdiction of the subject matter. Appellees misconceive the holding of that case. The holding was precisely contrary to their reading of it. Seven members of the Court participated in the decision. Unlike many other cases in this field which have assumed without discussion that there was jurisdiction, all three opinions filed in Colegrove discussed the question. Two of the opinions expressing the views of four of the Justices, a majority, flatly held that there was jurisdiction of that subject matter. Mr. Justice Black joined by Mr. Justice Douglas and Mr. Justice Murphy stated: 'It is my judgment that the District Court had jurisdiction * * *,' citing the predecessor of 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3), and Bell v. Hood, supra. 328 U.S. at 568, 66 S.Ct. at 1210. Mr. Justice Rutledge, writing separately, expressed agreement with this conclusion. 328 U.S. at 564, 565, note 2, 66 S.Ct. at 1208. Indeed, it is even questionable that the opinion of Mr. Justice Frankfurter, joined by Justices Reed and Burton, doubted jurisdiction of the subject matter. Such doubt would have been inconsistent with the professed willingness to turn the decision on either the majority or concurring views in Wood v. Broom, supra. 328 U.S. at 551, 66 S.Ct. at 1199.
29
Several subsequent cases similar to Colegrove have been decided by the Court in summary per curiam statements. None was dismissed for want of jurisdiction of the subject matter. Cook v. Fortson, 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596; Turman v. Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262;21 Tedesco v. Board of Supervisors, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357; Remmey v. Smith, 342 U.S. 916, 72 S.Ct. 368, 96 L.Ed. 685; Cox v. Peters, 342 U.S. 936, 72 S.Ct. 559, 96 L.Ed. 697; Anderson v. Jordan, 343 U.S. 912, 72 S.Ct. 648, 96 L.Ed. 1328; Kidd v. McCanless, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157; Radford v. Gary, 352 U.S. 991, 77 S.Ct. 559, 1 L.Ed.2d 540; Hartsfield v. Sloan, 357 U.S. 916, 78 S.Ct. 1363, 2 L.Ed.2d 1363; Matthews v. Handley, 361 U.S. 127, 80 S.Ct. 256, 4 L.Ed.2d 180.22
30
Two cases decided with opinions after Colegrove likewise plainly imply that the subject matter of this suit is within District Court jurisdiction. In MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, the District Court dismissed for want of jurisdiction, which had been invoked under 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3), a suit to enjoin enforcement of the requirement that nominees for state-wide elections be supported by a petition signed by a minimum number of persons from at least 50 of the State's 102 counties. This Court's disagreement with that action is clear since the Court affirmed the judgment after a review of the merits and concluded that the particular claim there was without merit. In South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834, we affirmed the dismissal of an attack on the Georgia 'county unit' system but founded our action on a ground that plainly would not have been reached if the lower court lacked jurisdiction of the subject matter, which allegedly existed under 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3). The express words of our holding were that 'Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state's geographical distribution of electoral strength among its political subdivisions.' 339 U.S. at 277, 70 S.Ct. at p. 642.
31
We hold that the District Court has jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint.
III.
32
STANDING.
33
A federal court cannot 'pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.' Liverpool, N.Y. & P. Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law.
34
The complaint was filed by residents of Davidson, Hamilton, Knox, Montgomery, and Shelby Counties. Each is a person allegedly qualified to vote for members of the General Assembly representing his county.23 These appellants sued 'on their own behalf and on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who are similarly situated * * *.'24 The appellees are the Tennessee Secretary of State, Attorney General, Coordinator of Elections, and members of the State Board of Elections; the members of the State Board are sued in their own right and also as representatives of the County Election Commissioners whom they appoint.25
35
We hold that the appellants do have standing to maintain this suit. Our decisions plainly support this conclusion. Many of the cases have assumed rather than articulated the premise in deciding the merits of similar claims.26 And Colegrove v. Green, supra, squarely held that voters who allege facts showing disadvantage to themselves as individuals have standing to sue.27 A number of cases decided after Colegrove recognized the standing of the voters there involved to bring those actions.28
36
These appellants seek relief in order to protect or vindicate an interest of their own, and of those similarly situated. Their constitutional claim is, in substance, that the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the State's Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a -vis voters in irrationally favored counties. A citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally, cf. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; or by a refusal to count votes from arbitrarily selected precincts, cf. United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355, or by a stuffing of the ballot box, cf. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341.
37
It would not be necessary to decide whether appellants' allegations of impairment of their votes by the 1901 apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally cognizable injury, they are among those who have sustained it. They are asserting 'a plain, direct and adequate interest in maintaining the effectiveness of their votes,' Coleman v. Miller, 307 U.S. at 438, 59 S.Ct. at p. 975 not merely a claim of 'the right possessed by every citizen 'to require that the government be administered according to law * * *'.' Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 275, 66 L.Ed. 499; compare Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505. They are entitled to a hearing and to the District Court's decision on their claims. 'The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.' Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60.
IV.
38
JUSTICIABILITY.
39
In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green, supra, and subsequent per curiam cases.29 The court stated: 'From a review of these decisions there can be no doubt that the federal rule * * * is that the federal courts * * * will not intervene in cases of this type to compel legislative reapportionment.' 179 F.Supp. at 826. We understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a 'political question' and was therefore nonjusticiable. We hold that this challenge to an apportionment presents no nonjusticiable 'political question.' The cited cases do not hold the contrary.
40
Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection 'is little more than a play upon words.' Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759. Rather, it is argued that apportionment cases, whatever the actual wording of the complaint, can involve no federal constitutional right except one resting on the guaranty of a republican form of government,30 and that complaints based on that clause have been held to present political questions which are nonjusticiable.
41
We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Colegrove v. Green and other decisions of this Court on which it relied. Appellants' claim that they are being denied equal protection is justiciable, and if 'discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.' Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497. To show why we reject the argument based on the Guaranty Clause, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did present political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the 'political question' doctrine.
42
Our discussion, even at the price of extending this opinion, requires review of a number of political question cases, in order to expose the attributes of the doctrine—attributes which, in various settings, diverge, combine, appear, and disappear in seeming disorderliness. Since that review is undertaken solely to demonstrate that neither singly nor collectively do these cases support a conclusion that this apportionment case is nonjusticiable, we of course do not explore their implications in other contexts. That review reveals that in the Guaranty Clause cases and in the other 'political question' cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the 'political question.'
43
We have said that 'In determining whether a question falls within (the political question) category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.' Coleman v. Miller, 307 U.S. 433, 454—455, 59 S.Ct. 972, 982, 83 L.Ed. 1385. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the 'political question' label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case.
44
Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions.31 Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature;32 but many such questions uniquely demand single-voiced statement of the Government's views.33 Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question 'governmental action * * * must be regarded as of controlling importance,' if there has been no conclusive 'governmental action' then a court can construe a treaty and may find it provides the answer. Compare Terlinden v. Ames, 184 U.S. 270, 285, 22 S.Ct. 484, 490, 46 L.Ed. 534, with Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464, 492—495, 5 L.Ed. 662.34 Though a court will not undertake to construe a treaty in a manner inconsistent with a subsequent federal statute, no similar hesitancy obtains if the asserted clash is with state law. Compare Whitney v. Robertson, 124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 386, with Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218.
45
While recognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called 'a republic of whose existence we know nothing,'35 and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory,36 once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area.37 Similarly, recognition of belligerency abroad is an executive responsibility, but if the executive proclamations fall short of an explicit answer, a court may construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have become operative. The Three Friends, 166 U.S. 1, 63, 66, 17 S.Ct. 495, 502, 503, 41 L.Ed. 497. Still again, though it is the executive that determines a person's status as representative of a foreign government, Ex parte Hitz, 111 U.S. 766, 4 S.Ct. 698, 28 L.Ed. 592, the executive's statements will be construed where necessary to determine the court's jurisdiction, In re Baiz, 135 U.S. 403, 10 S.Ct. 854, 34 L.Ed. 222. Similar judicial action in the absence of a recognizedly authoritative executive declaration occurs in cases involving the immunity from seizure of vessels owned by friendly foreign governments. Compare Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014, with Mexico v. Hoffman, 324 U.S. 30, 34—35, 65 S.Ct. 530, 532, 89 L.Ed. 729.
46
Dates of duration of hostilities: Though it has been stated broadly that 'the power which declared the necessity is the power to declare its cessation, and what the cessation requires,' Commercial Trust Co. v. Miller, 262 U.S. 51, 57, 43 S.Ct. 486, 488, 489, 67 L.Ed. 858, here too analysis reveals isolable reasons for the presence of political questions, underlying this Court's refusal to review the political departments' determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency's nature demands 'A prompt and unhesitating obedience,' Martin v. Mott, 12 Wheat. 19, 30, 6 L.Ed. 537 (calling up of militia). Moreover, 'the cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146, 161, 40 S.Ct. 106, 110, 64 L.Ed. 194, that the war power includes the power 'to remedy the evils which have arisen from its rise and progress' and continues during that emergency. Stewart v. Kahn, 11 Wall. 493, 507, 20 L.Ed. 176.' Fleming v. Mohawk Wrecking Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132, 91 L.Ed. 1375. But deference rests on reason, not habit.38 The question in a particular case may not seriously implicate considerations of finality—e.g., a public program of importance (rent control) yet not central to the emergency effort.39 Further, clearly definable criteria for decision may be available. In such case the political question barrier falls away: '(A) Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. * * * (It can) inquire whether the exigency still existed upon which the continued operation of the law depended.' Chastleton Corp. v. Sinclair, 264 U.S. 543, 547—548, 44 S.Ct. 405, 406, 68 L.Ed. 841.40 Compare Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed. 596. On the other hand, even in private litigation which directly implicates no feature of separation of powers, lack of judicially discoverable standards and the drive for even-handed application may impel reference to the political departments' determination of dates of hostilities' beginning and ending. The Protector, 12 Wall. 700, 20 L.Ed. 463.
47
Validity of enactments: In Coleman v. Miller, supra, this Court held that the questions of how long a proposed amendment to the Federal Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp.41 Similar considerations apply to the enacting process: 'The respect due to coequal and independent departments,' and the need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether, as passed, it complied with all requisite formalities. Field v. Clark, 143 U.S. 649, 672, 676—677, 12 S.Ct. 495, 497, 499, 36 L.Ed. 294; see Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 218, 66 L.Ed. 505. But it is not true that courts will never delve into a legislature's records upon such a quest: If the enrolled statute lacks an effective date, a court will not hesitate to seek it in the legislative journals in order to preserve the enactment. Gardner v. Collector, 6 Wall. 499, 18 L.Ed. 890. The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.
48
The status of Indian tribes: This Court's deference to the political departments in determining whether Indians are recognized as a tribe, while it reflects familiar attributes of political questions,42 United States v. Holliday, 3 Wall. 407, 419, 18 L.Ed. 182, also has a unique element in that 'the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else. * * * (The Indians are) domestic dependent nations * * * in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.' Cherokee Nation v. Georgia, 5 Pet. 1, 16, 17, 8 L.Ed. 25.43 Yet, here too, there is no blanket rule.
49
While "It is for (Congress) * * *, and not for the courts, to determine when the true interests of the Indian require his release from (the) condition of tutelage' * * *, it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe * * *.' United States v. Sandoval, 231 U.S. 28, 46, 34 S.Ct. 1, 6, 58 L.Ed. 107. Able to discern what is 'distinctly Indian,' ibid., the courts will strike down any heedless extension of that label. They will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power.
50
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
51
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions,' not one of 'political cases.' The courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.
52
But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution's guaranty, in Art. IV, s 4, of a republican form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a 'political question,' and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization.
53
Republican form of government: Luther v. Borden, 7 How. 1, 12 L.Ed. 581, though in form simply an action for damages for trespass was, as Daniel Webster said in opening the argument for the defense, 'an unusual case.'44 The defendants, admitting an otherwise tortious breaking and entering, sought to justify their action on the ground that they were agents of the established lawful government of Rhode Island, which State was then under martial law to defend itself from active insurrection; that the plaintiff was engaged in that insurrection; and that they entered under orders to arrest the plaintiff. The case arose 'out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842,' 7 How., at 34, and which had resulted in a situation wherein two groups laid competing claims to recognition as the lawful government.45 The plaintiff's right to recover depended upon which of the two groups was entitled to such recognition; but the lower court's refusal to receive evidence or hear argument on that issue, its charge to the jury that the earlier established or 'charter' government was lawful, and the verdict for the defendants, were affirmed upon appeal to this Court.
54
Chief Justice Taney's opinion for the Court reasoned as follows: (1) If a court were to hold the defendants' acts unjustified because the charter government had no legal existence during the period in question, it would follow that all of that government's actions—laws enacted, taxes collected, salaries paid, accounts settled, sentences passed—were of no effect; and that 'the officers who carried their decisions into operation (were) answerable as trespassers, if not in some cases as criminals.'46 There was, of course, no room for application of any doctrine of de facto status to uphold prior acts of an officer not authorized de jure, for such would have defeated the plaintiff's very action. A decision for the plaintiff would inevitably have produced some significant measure of chaos, a consequence to be avoided if it could be done without abnegation of the judicial duty to uphold the Constitution.
55
(2) No state court had recognized as a judicial responsibility settlement of the issue of the locus of state governmental authority. Indeed, the courts of Rhode Island had in several cases held that 'it rested with the political power to decide whether the charter government had been displaced or not,' and that that department had acknowledged no change.
56
(3) Since '(t)he question relates, altogether, to the constitution and laws of (the) * * * State,' the courts of the United States had to follow the state courts' decisions unless there was a federal constitutional ground for overturning them.47
57
(4) No provision of the Constitution could be or had been invoked for this purpose except Art. IV, § 4, the Guaranty Clause. Having already noted the absence of standards whereby the choice between governments could be made by a court acting independently, Chief Justice Taney now found further textual and practical reasons for concluding that, if any department of the United States was empowered by the Guaranty Clause to resolve the issue, it was not the judiciary:
58
'Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and * * * Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.
59
'So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of demestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this guarantee. * * * (B)y the act of February 28, 1795, (Congress) provided, that, 'in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.'
60
'By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. * * *
61
'After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? * * * If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. * * *
62
'It is true that in this case the militia were not called out by the President. But upon the application of the governor under the charter government, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority if it should be found necessary for the general government to interfere * * *. (C)ertainly no court of the United States, with a knowledge of this decision, would have been justified in recognizing the opposing party as the lawful government * * *. In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice. * * *' 7 How., at 42—44.
63
Clearly, several factors were thought by the Court in Luther to make the question there 'political': the commitment to the other branches of the decision as to which is the lawful state government; the unambiguous action by the President, in recognizing the charter government as the lawful authority; the need for finality in the executive's decision; and the lack of criteria by which a court could determine which form of government was republican.48
64
But the only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State's lawful government. The Court has since refused to resort to the Guaranty Clause—which alone had been invoked for the purpose—as the source of a constitutional standard for invalidating state action. See Taylor & Marshall v. Beckham (No. 1), 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 (claim that Kentucky's resolution of contested gubernatorial election deprived voters of republican government held nonjusticiable); Pacific States Tel. & T. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (claim that initiative and referendum negated republican government held nonjusticiable); Kiernan v. Portland, 223 U.S. 151, 32 S.Ct. 231, 56 L.Ed. 386 (claim that municipal charter amendment per municipal initiative and referendum negated republican government held nonjusticiable); Marshall v. Dye, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206 (claim that Indiana's constitutional amendment procedure negated republican government held nonjusticiable); O'Neill v. Leamer, 239 U.S. 244, 36 S.Ct. 54, 60 L.Ed. 249 (claim that delegation to court of power to form drainage districts negated republican government held 'futile'); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (claim that invalidation of state reapportionment statute per referendum negates republican government held nonjusticiable);49 Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685 (claim that workmen's compensation violates republican government held nonjusticiable); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 50 S.Ct. 228, 74 L.Ed. 710 (claim that rule requiring invalidation of statute by all but one justice of state court negated republican government held nonjusticiable); Highland Farms Dairy v. Agnew, 300 U.S. 608, 57 S.Ct. 549, 81 L.Ed. 835 (claim that delegation to agency of power to control milk prices violated republican government, rejected).
65
Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question. In Georgia v. Stanton, 6 Wall. 50, 18 L.Ed. 721, the State sought by an original bill to enjoin execution of the Reconstruction Acts, claiming that it already possessed 'A republican State, in every political, legal, constitutional, and juridical sense,' and that enforcement of the new Acts 'Instead of keeping the guaranty against a forcible overthrow of its government by foreign invaders or domestic insurgents, * * * is destroying that very government by force.'50 Congress had clearly refused to recognize the republican character of the government of the suing State.51 It seemed to the Court that the only constitutional claim that could be presented was under the Guaranty Clause, and Congress having determined that the effects of the recent hostilities required extraordinary measures to restore governments of a republican form, this Court refused to interfere with Congress' action at the behest of a claimant relying on that very guaranty.52
66
In only a few other cases has the Court considered Art. IV, § 4, in relation to congressional action. It has refused to pass on a claim relying on the Guaranty Clause to establish that Congress lacked power to allow the States to employ the referendum in passing on legislation redistricting for congressional seats. Ohio ex rel. Davis v. Hildebrant, supra. And it has pointed out that Congress is not required to establish republican government in the territories before they become States, and before they have attained a sufficient population to warrant a polularly elected legislature. Downes v. Bidwell, 182 U.S. 244, 278—279, 21 S.Ct. 770, 783—784, 45 L.Ed. 1088 (dictum).53
67
We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable 'political question' bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home54 if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.
68
This case does, in one sense, involve the allocation of political power within a State, and the appellants might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. But because any reliance on the Guaranty Clause could not have succeeded it does not follow that appellants may not be heard on the equal protection claim which in fact they tender. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here.
69
In this connection special attention is due Pacific States Tel. & T. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377. In that case a corporation tax statute enacted by the initiative was attacked ostensibly on three grounds: (1) due process; (2) equal protection; and (3) the Guaranty Clause. But it was clear that the first two grounds were invoked solely in aid of the contention that the tax was invalid by reason of its passage:
70
'The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised, they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes it (sic) not on the tax as a tax, but on the state as a state. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power, assailed on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the state that it establish its right to exist as a State, republican in form.' 223 U.S. at 150—151, 32 S.Ct. at 231.
71
The due process and equal protection claims were held nonjusticiable in Pacific States not because they happened to be joined with a Guaranty Clause claim, or because they sought to place before the Court a subject matter which might conceivably have been dealt with through the Guaranty Clause, but because the Court believed that they were invoked merely in verbal aid of the resolution of issues which, in its view, entailed political questions. Pacific States may be compared with cases such as Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, wherein the Court refused to consider whether a workmen's compensation act violated the Guaranty Clause but considered at length, and rejected, due process and equal protection arguments advanced against it; and O'Neill v. Leamer, 239 U.S. 244, 36 S.Ct. 54, 60 L.Ed. 249, wherein the Court refused to consider whether Nebraska's delegation of power to form drainage districts violated the Guaranty Clause, but went on to consider and reject the contention that the action against which an injunction was sought was not a taking for a public purpose.
72
We conclude then that the nonjusticiability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought 'political,' can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define 'political questions,' and no other feature, which could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. Brief examination of a few cases demonstrates this.
73
When challenges to state action respecting matters of 'the administration of the affairs of the State and the officers through whom they are conducted'55 have rested on claims of constitutional deprivation which are amenable to judicial correction, this Court has acted upon its view of the merits of the claim. For example, in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 12 S.Ct. 375, we reversed the Nebraska Supreme Court's decision that Nebraska's Governor was not a citizen of the United States or of the State and therefore could not continue in office. In Kennard v. Louisiana ex rel. Morgan, 92 U.S. 480, 23 L.Ed. 478, and Foster v. Kansas ex rel. Johnston, 112 U.S. 201, 5 S.Ct. 8, 28 L.Ed. 629, we considered whether persons had been removed from public office by procedures consistent with the Fourteenth Amendment's due process guaranty, and held on the merits that they had. And only last Term, in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, we applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a discriminatory impairment of voting rights, in the face of what a majority of the Court of Appeals thought to be a sweeping commitment to state legislatures of the power to draw and redraw such boundaries.56
74
Gomillion was brought by a Negro who had been a resident of the City of Tuskegee, Alabama, until the municipal boundaries were so recast by the State Legislature as to exclude practically all Negroes. The plaintiff claimed deprivation of the right to vote in municipal elections. The District Court's, 167 F.Supp. 405, dismissal for want of jurisdiction and failure to state a claim upon which relief could be granted was affirmed by the Court of Appeals, 5 Cir., 270 F.2d 594. This Court unanimously reversed. This Court's answer to the argument that States enjoyed unrestricted control over municipal boundaries was:
75
'Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. * * * The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. 'It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence." 364 U.S. at 344—345, 81 S.Ct. at 129.
76
To a second argument, that Colegrove v. Green, supra, was a barrier to hearing the merits of the case, the Court responded that Gomillion was lifted 'out of the so-called 'political' arena and into the conventional sphere of constitutional litigation' because here was discriminatory treatment of a racial minority violating the Fifteenth Amendment.
77
'A statute which is alleged to have worked unconstitutional deprivations of petitioners' rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. * * * While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was not Colegrove v. Green.
78
'When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.' 364 U.S. at 347, 81 S.Ct. at 130.57
79
We have not overlooked such cases as In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402, and Walton v. House of Representatives, 265 U.S. 487, 44 S.Ct. 628, 68 L.Ed. 1115, which held that federal equity power could not be exercised to enjoin a state proceeding to remove a public officer. But these decisions explicitly reflect only a traditional limit upon equity jurisdiction, and not upon federal courts' power to inquire into matters of state governmental organization. This is clear not only from the opinions in those cases, but also from White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199, which, relying on Sawyer, withheld federal equity from staying removal of a federal officer. Wilson v. North Carolina, 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865, simply dismissed an appeal from an unsuccessful suit to upset a State's removal procedure, on the ground that the constitutional claim presented—that a jury trial was necessary if the removal procedure was to comport with due process requirements was frivolous. Finally, in Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548, 20 S.Ct. 890, 1009, 44 L.Ed. 1187, where losing candidates attacked the constitutionality of Kentucky's resolution of a contested gubernatorial election, the Court refused to consider the merits of a claim posited upon the Guaranty Clause, holding it presented a political question, but also held on the merits that the ousted candidates had suffered no deprivation of property without due process of law.58
80
Since, as has been established, the equal protection claim tendered in this case does not require decision of any political question, and since the presence of a matter affecting state government does not render the case nonjusticiable, it seems appropriate to examine again the reasoning by which the District Court reached its conclusion that the case was nonjusticiable.
81
We have already noted that the District Court's holding that the subject matter of this complaint was nonjusticiable relied upon Colegrove v. Green, supra, and later cases. Some of those concerned the choice of members of a state legislature, as in this case; others, like Colegrove itself and earlier precedents, Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795; Koenig v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805, and Carroll v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807, concerned the choice of Representatives in the Federal Congress. Smiley, Koenig and Carroll settled the issue in favor of justiciability of questions of congressional redistricting. The Court followed these precedents in Colegrove although over the dissent of three of the seven Justices who participated in that decision. On the issue of justiciability, all four Justices comprising a majority relied upon Smiley v. Holm, but in two opinions, one for three Justices, 328 U.S. at 566, 568, 66 S.Ct. at 1209, and a separate one by Mr. Justice Rutledge, 328 U.S. at 564, 66 S.Ct. at 1208. The argument that congressional redistricting problems presented a 'political question' the resolution of which was confided to Congress might have been rested upon Art. I, § 4, Art. I, § 5, Art. I, § 2, and Amendment XIV, § 2. Mr. Justice Rutledge said: 'But for the ruling in Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795, I should have supposed that the provisions of the Constitution, Art. I, § 4, that 'The Times, Places and Manner of holding Elections for * * * Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations * * *'; Art. I, § 2 (but see Amendment XIV, § 2), vesting in Congress the duty of apportionment of representatives among the several states 'according to their respective Numbers'; and Art. I, § 5, making each house the sole judge of the qualifications of its own members, would remove the issues in this case from justiciable cognizance. But, in my judgment, the Smiley case rules squarely to the contrary, save only in the matter of degree. * * * Assuming that that decision is to stand, I think * * * that its effect is to rule that this Court has power to afford relief in a case of this type as against the objection that the issues are not justiciable.' 328 U.S. at 564 565, 66 S.Ct. at 1208. Accordingly, Mr. Justice Rutledge joined in the conclusion that the case was justiciable, although he held that the dismissal of the complaint should be affirmed. His view was that 'The shortness of the time remaining (before forthcoming elections) makes it doubtful whether action could, or would, be taken in time to secure for petitioners the effective relief they seek. * * * I think, therefore, the case is one in which the Court may properly, and should, decline to exercise its jurisdiction. Accordingly, the judgment should be affirmed and I join in that disposition of the cause.' 328 U.S., at 565—566, 66 S.Ct. at 1208.59
82
Article I, §§ 2, 4, and 5, and Amendment XIV, § 2, relate only to congressional elections and obviously do not govern apportionment of state legislatures. However, our decisions in favor of justiciability even in light of those provisions plainly afford no support for the District Court's conclusion that the subject matter of this controversy presents a political question. Indeed, the refusal to award relief in Colegrove resulted only from the controlling view of a want of equity. Nor is anything contrary to be found in those per curiams that came after Colegrove. This Court dismissed the appeals in Cook v. Fortson (Turman v. Duckworth), 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596, as moot. MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, held only that in that case equity would not act to void the State's requirement that there be at least a minimum of support for nominees for state-wide office, over at least a minimal area of the State. Problems of timing were critical in Remmey v. Smith, 342 U.S. 916, 72 S.Ct. 368, 96 L.Ed. 685, dismissing for want of a substantial federal question a three-judge court's dismissal of the suit as prematurely brought, D.C., 102 F.Supp. 708; and in Hartsfield v. Sloan, 357 U.S. 916, 78 S.Ct. 1363, 2 L.Ed.2d 1363, denying mandamus sought to compel the convening of a three-judge court—movants urged the Court to advance consideration of their case 'Inasmuch as the mere lapse of time before this case can be reached in the normal course of * * * business may defeat the cause, and inasmuch as the time problem is due to the inherent nature of the case * * *.' South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834, like Colegrove appears to be a refusal to exercise equity's powers; see the statement of the holding, quoted, supra, 369 U.S., p. 203, 82 S.Ct. p. 703. And Cox v. Peters, 342 U.S. 936, 72 S.Ct. 559, 96 L.Ed. 697, dismissed for want of a substantial federal question the appeal from the state court's holding that their primary elections implicated no 'state action.' See 208 Ga. 498, 67 S.E.2d 579. But compare Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152
83
Tedesco v. Board of Supervisors, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357, indicates solely that no substantial federal question was raised by a state court's refusal to upset the districting of city council seats, especially as it was urged that there was a rational justification for the challenged districting. See La.App., 43 So.2d 514. Similarly, in Anderson v. Jordan, 343 U.S. 912, 72 S.Ct. 648, 96 L.Ed. 1328, it was certain only that the state court had refused to issue a discretionary writ, original mandamus in the Supreme Court. That had been denied without opinion, and of course it was urged here that an adequate state ground barred this Court's review. And in Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40, the Supreme Court of Tennessee held that it could not invalidate the very statute at issue in the case at bar, but its holding rested on its state law of remedies, i.e., the state view of de facto officers,60 and not on any view that the norm for legislative apportionment in Tennessee is not numbers of qualified voters resident in the several counties. Of course this Court was there precluded by the adequate state ground, and in dismissing the appeal, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157, we cited Anderson, supra, as well as Colegrove. Nor does the Tennessee court's decision in that case bear upon this, for just as in Smith v. Holm, 220 Minn. 486, 19 N.W.2d 914, and Magraw v. Donovan, D.C., 163 F.Supp. 184; D.C., 177 F.Supp. 803, a state court's inability to grant relief does not bar a federal court's assuming jurisdiction to inquire into alleged deprivation of federal constitutional rights. Problems of relief also controlled in Radford v. Gary, 352 U.S. 991, 77 S.Ct. 559, 1 L.Ed.2d 540, affirming the District Court's refusal to mandamus the Governor to call a session of the legislature, to mandamus the legislature then to apportion, and if they did not comply, to mandamus the State Supreme Court to do so. And Matthews v. Handley, 361 U.S. 127, 80 S.Ct. 256, 4 L.Ed.2d 180, affirmed a refusal to strike down the State's gross income tax statute—urged on the ground that the legislature was malapportioned—that had rested on the adequacy of available state legal remedies for suits involving that tax, including challenges to its constitutionality. Lastly, Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262, in which Mr. Justice Rutledge concurred in this Court's refusal to note the appeal from a dismissal for want of equity, is sufficiently explained by his statement in Cook v. Fortson, supra: 'The discretionary exercise or nonexercise of equitable or declaratory judgment jurisdiction * * * in one case is not precedent in another case where the facts differ.' 329 U.S. at 678, n. 8, 67 S.Ct. 21, at 22, 91 L.Ed. 596. (Citations omitted.)
84
We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment.
85
The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion.
86
Reversed and remanded.
87
Mr. Justice WHITTAKER did not participate in the decision of this case.
APPENDIX TO OPINION OF THE COURT
88
The Tennessee Code Annotated provides for representation in the General Assembly as follows:
89
'3—101. Composition—Counties electing one representative each.—The general assembly of the state of Tennessee shall be composed of thirty-three (33) senators and ninty-nine (99) representatives, to be apportioned among the qualified voters of the state as follows: Until the next enumeration and apportionment of voters each of the following counties shall elect one (1) representative, to wit: Bedford, Blount, Cannon, Carroll, Chester, Cocke, Claiborne, Coffee, Crockett, DeKalb, Dickson, Dyer, Fayette, Franklin, Giles, Greene, Hardeman, Hardin, Henry, Hickman, Hawkins, Haywood, Jackson, Lake, Lauderdale, Lawrence, Lincoln, Marion, Marshall, Maury, Monroe, Montgomery, Moore, McMinn, McNairy, Obion, Overton, Putnam, Roane, Robertson, Rutherford, Sevier, Smith, Stewart, Sullivan, Sumner, Tipton, Warren, Washington, White, Weakley, Williamson and Wilson. (Acts 1881 (E.S.), ch. 5, § 1; 1881 (E.S.), ch. 6, § 1; 1901, ch. 122, § 2; 1907, ch. 178, §§ 1, 2; 1915, ch. 145; Shan., § 123; Acts 1919, ch. 147, §§ 1, 2; 1925 Private, ch. 472, § 1; Code 1932, § 140; Acts 1935, ch. 150, § 1; 1941, ch. 58, § 1; 1945, ch. 68, § 1; C.Supp.1950, § 140.)'
90
'3—102. Counties electing two representatives each.—The following counties shall elect two (2) representatives each, to wit: Gibson and Madison. (Acts 1901, ch. 122, § 3; Shan., § 124; mod. Code 1932, § 141.)'
91
'3—103. Counties electing three representatives each.—The following counties shall elect three (3) representatives each, to wit: Knox and Hamilton. (Acts 1901, ch. 122, § 4; Shan., § 125; Code 1932, § 142.)'
92
'3—104. Davidson County.—Davidson county shall elect six (6) representatives. (Acts 1901, ch. 122, § 5; Shan., § 126; Code 1932, § 143.)
93
'3—105. Shelby County.—Shelby county shall elect eight (8) representatives. Said county shall consist of eight (8) representative districts, numbered one (1) through eight (8), each district coextensive with the county, with one (1) representative to be elected from each district. (Acts 1901, ch. 122, § 6; Shan., § 126a 1; Code 1932; § 144; Acts 1957, ch. 220, § 1; 1959, ch. 213, § 1.)
94
'3—106. Joint representatives.—The following counties jointly, shall elect one representative, as follows, to wit:
95
'First district—Johnson and Carter.
96
'Second district—Sullivan and Hawkins.
97
'Third district—Washington, Greene and Unicoi.
98
'Fourth district—Jefferson and Hamblen.
99
'Fifth district—Hancock and Grainger.
100
'Sixth district—Scott, Campbell, and Union.
101
'Seventh district—Anderson and Morgan.
102
'Eighth district—Knox and Loudon.
103
'Ninth district—Polk and Bradley.
104
'Tenth district—Meigs and Rhea.
105
'Eleventh district—Cumberland, Bledsoe, Sequatchie, Van Buren and Grundy.
106
'Twelfth district—Fentress, Pickett, Overton, Clay and Putnam.
107
'Fourteenth district—Sumner, Trousdale and Macon.
108
'Fifteenth district—Davidson and Wilson.
109
'Seventeenth district—Giles, Lewis, Maury and Wayne.
110
'Eighteenth district—Williamson, Cheatham and Robertson.
111
'Nineteenth district—Montgomery and Houston.
112
'Twentieth district—Humphreys and Perry.
113
'Twenty-first district—Benton and Decatur.
114
'Twenty-second district—Henry, Weakley and Carroll.
115
'Twenty-third district—Madison and Henderson.
116
'Twenty-sixth district—Tipton and Lauderdale. (Acts 1901, ch. 122, § 7; 1907, ch. 178, §§ 1, 2; 1915, ch. 145, §§ 1, 2; Shan., § 127; Acts 1919, ch. 147, § 1; 1925 Private, ch. 472, § 2; Code 1932, § 145; Acts 1933, ch. 167, § 1; 1935, ch. 150, § 2; 1941, ch. 58, § 2; 1945, ch. 68, § 2; C.Supp.1950, § 145; Acts 1957, ch. 220, § 2.)
117
'3—107. State senatorial districts.—Until the next enumeration and apportionment of voters, the following counties shall comprise the senatorial districts, to wit:
118
'First district—Johnson, Carter, Unicoi, Greene, and Washington.
119
'Second district—Sullivan and Hawkins.
120
'Third district—Hancock, Morgan, Grainger, Claiborne, Union, Campbell, and Scott.
121
'Fourth district—Cocke, Hamblen, Jefferson, Sevier, and Blount.
122
'Fifth district—Knox.
123
'Sixth district—Knox, Loudon, Anderson, and Roane.
124
'Seventh district—McMinn, Bradley, Monroe, and Polk.
125
'Eighth district—Hamilton.
126
'Ninth district—Rhea, Meigs, Bledsoe, Sequatchie, Van Buren, White, and Cumberland.
127
'Tenth district—Fentress, Pickett, Clay, Overton, Putnam, and Jackson.
128
'Eleventh district—Marion, Franklin, Grundy and Warren.
129
'Twelfth district—Rutherford, Cannon, and DeKalb.
130
'Thirteenth district—Wilson and Smith.
131
'Fourteenth district—Sumner, Trousdale and Macon.
132
'Fifteenth district—Montgomery and Robertson.
133
'Sixteenth district—Davidson.
134
'Seventeenth district—Davidson.
135
'Eighteenth district—Bedford, Coffee and Moore.
136
'Nineteenth district—Lincoln and Marshall.
137
'Twentieth district—Maury, Perry and Lewis.
138
'Twenty-first district—Hickman, Williamson and Cheatham.
139
'Twenty-second district—Giles, Lawrence and Wayne.
140
'Twenty-third district—Dickson, Humphreys, Houston and Stewart.
141
'Twenty-fourth district—Henry and Carroll.
142
'Twenty-fifth district—Madison, Henderson and Chester.
143
'Twenty-sixth district—Hardeman, McNairy, Hardin, Decatur and Benton.
144
'Twenty-seventh district—Gibson.
145
'Twenty-eighth district—Lake, Obion and Weakley.
146
'Twenty-ninth district—Dyer, Lauderdale and Crockett.
147
'Thirtieth district—Tipton and Shelby.
148
'Thirty-first district—Haywood and Fayette.
149
'Thirty-second district—Shelby.
150
'Thirty-third district—Shelby. (Acts 1901, ch. 122, § 1; 1907, ch. 3, § 1; Shan., § 128; Code 1932, § 146; Acts 1945, ch. 11, § 1; C.Supp.1950, § 146.)'
151
Today's apportionment statute is as enacted in 1901, with minor changes. For example:
152
(1) In 1957, Shelby County was raised from 7 1/2 to 8 representatives. Acts of 1957, c. 220. See also Acts of 1959, c. 213. The 1957 Act, § 2, abolished the Twenty-seventh Joint Representative District, which had included Shelby and Fayette Counties.
153
(2) In 1907, Marion County was given a whole House seat instead of sharing a joint seat with Franklin County. Acts of 1907, c. 178. Acts of 1915, c. 145, repealed that change, restoring the status quo ante. And that reversal was itself reversed, Acts of 1919, c. 147.
154
(3) James County was in 1901 one of five counties in the Seventh State Senate District and one of the three in the Ninth House District. It appears that James County no longer exists but we are not advised when or how it was dissolved.
155
(4) In 1945, Anderson and Roane Counties were shifted to the Sixth State Senate District from the Seventh, and Monroe and Polk Counties were shifted to the Seventh from the Sixth. Acts of 1945, c. 11.
156
Mr. Justice DOUGLAS, concurring.
157
While I join the opinion of the Court and, like the Court, do not reach the merits, a word of explanation is necessary.1 I put to one side the problems of 'political' questions involving the distribution of power between this Court, the Congress, and the Chief Executive. We have here a phase of the recurring problem of the relation of the federal courts to state agencies. More particularly, the question is the extent to which a State may weight one person's vote more heavily than it does another's.
158
So far as voting rights are concerned, there are large gaps in the Constitution. Yet the right to vote is inherent in the republican form of government envisaged by Article IV, Section 4 of the Constitution. The House—and now the Senate—are chosen by the people. The time, manner, and place of elections of Senators and Representatives are left to the States (Article I, Section 4, Clause 1; Amendment XVII) subject to the regulatory power of Congress. A 'republican form' of government is guaranteed each State by Article IV, Section 4, and each is likewise promised protection against invasion.2 Ibid. That the States may specify the qualifications for voters is implicit in Article I, Section 2, Clause 1, which provides that the House of Representatives shall be chosen by the people and that 'the Electors (voters) in each state shall have the qualifications requisite for electors (voters) of the most numerous branch of the state legislature.' The same provision, contained in the Seventeenth Amendment, governs the election of Senators. Within limits those qualifications may be fixed by state law. See Lassiter v. Northampton Election Board, 360 U.S. 45, 50 51, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072. Yet, as stated in Ex parte Yarbrough, 110 U.S. 651, 663—664, 4 S.Ct. 152, 158, 28 L.Ed. 274, those who vote for members of Congress do not 'owe their right to vote to the state law, in any sense which makes the exercise of the right to depend exclusively on the law of the state.' The power of Congress to prescribe the qualifications for voters and thus override state law is not in issue here. It is, however, clear that by reason of the commands of the Constitution there are several qualifications that a State may not require.
159
Race, color, or previous condition of servitude is an impermissible standard by reason of the Fifteenth Amendment, and that alone is sufficient to explain Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. See Taper, Gomillion versus Lightfoot (1962), pp. 12—17.
160
Sex is another impermissible standard by reason of the Nineteenth Amendment.
161
There is a third barrier to a State's freedom in prescribing qualifications of voters and that is the Equal Protection Clause of the Fourteenth Amendment, the provision invoked here. And so the question is, may a State weight the vote of one county or one district more heavily than it weights the vote in another?
162
The traditional test under the Equal Protection Clause has been whether a State has made 'an invidious discrimination,' as it does when it selects 'a particular race or nationality for oppressive treatment.' See Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655. Universal equality is not the test; there is room for weighting. As we stated in Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563, 'The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.'
163
I agree with my Brother CLARK that if the allegations in the complaint can be sustained a case for relief is established. We are told that a single vote in Moore County, Tennessee, is worth 19 votes in Hamilton County, that one vote in Stewart or in Chester County is worth nearly eight times a single vote in Shelby or Knox County. The opportunity to prove that an 'invidious discrimination' exists should therefore be given the appellants.
164
It is said that any decision in cases of this kind is beyond the competence of courts. Some make the same point as regards the problem of equal protection in cases involving racial segregation. Yet the legality of claims and conduct is a traditional subject for judicial determination. Adjudication is often perplexing and complicated. An example of the extreme complexity of the task can be seen in a decree apportioning water among the several States. Nebraska v. Wyoming, 325 U.S. 589, 665, 65 S.Ct. 1332, 1373, 89 L.Ed. 1815. The constitutional guide is often vague, as the decisions under the Due Process and Commerce Clauses show. The problem under the Equal Protection Clause is no more intricate. See Lewis, Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057, 1083—1084.
165
There are, of course, some questions beyond judicial competence. Where the performance of a 'duty' is left to the discretion and good judgment of an executive officer, the judiciary will not compel the exercise of his discretion one way or the other (Commonwealth of Kentucky v. Dennison, 24 How. 66, 10 9, 16 L.Ed. 717), for to do so would be to take over the office. Cf. Federal Communications Comm. v. Broadcasting Co., 309 U.S. 134, 145, 60 S.Ct. 437, 442, 84 L.Ed. 656.
166
Where the Constitution assigns a particular function wholly and indivisibly3 to another department, the federal judiciary does not intervene. Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726. None of those cases is relevant here.
167
There is no doubt that the federal courts have jurisdiction of controversies concerning voting rights. The Civil Rights Act gives them authority to redress the deprivation 'under color of any State law' 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 * * *.' 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3). And 28 U.S.C. § 1343(4), 28 U.S.C.A. § 1343(4) gives the federal courts authority to award damages or issue an injunction to redress the violation of 'any Act of Congress providing for the protection of civil rights, including the right to vote.' (Italics added.) The element of state action covers a wide range. For as stated in United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368:
168
'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.' And see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.
169
The right to vote in both federal and state elections was protected by the judiciary long before that right received the explicit protection it is now accorded by § 1343(4). Discrimination against a voter on account of race has been penalized (Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274) or struck down. Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Terry v. Admas, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. Fraudulent acts that dilute the votes of some have long been held to be within judicial cognizance. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717. The 'right to have one's vote counted' whatever his race or nationality or creed was held in United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355, to be 'as open to protection by Congress as the right to put a ballot in a box.' See also United States v. Classic, supra, 313 U.S. at 324—325, 61 S.Ct. at 1042; United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341.
170
Chief Justice Holt stated in Ashby v. White, 2 Ld.Raym. 938, 956 (a suit in which damages were awarded against election officials for not accepting the plaintiff's vote, 3 Ld.Raym. 320) that:
171
'To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.'
172
The same prophylactic effect will be produced here, as entrenched political regimes make other relief as illusory in this case as a petition to Parliament in Ashby v. White would have been.4
173
Intrusion of the Federal Government into the election machinery of the States has taken numerous forms—investigations (Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307); criminal proceedings (Ex parte Siebold, supra; Ex parte Yarbrough, supra; United States v. Mosley, supra; United States v. Classic, supra); collection of penalties (Smith v. Allwright, supra); suits for declaratory relief and for an injunction (Terry v. Adams, supra); suits by the United States under the Civil Rights Act to enjoin discriminatory practices. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524.
174
As stated by Judge McLaughlin in Dyer v. Kazuhisa Abe, D.C., 138 F.Supp. 220, 236 (an apportionment case in Hawaii which was reversed and dismissed as moot, 9 Cir., 256 F.2d 728):
175
'The whole thrust of today's legal climate is to end unconstitutional discrimination. It is ludicrous to preclude judicial relief when a mainspring of representative government is impaired. Legislators have no immunity from the Constitution. The legislatures of our land should be made as responsive to the Constitution of the United States as are the citizens who elect the legislators.'
176
With the exceptions of Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432; MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3; South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834, and the decisions they spawned, the Court has never thought that protection of voting rights was beyond judicial cognizance. Today's treatment of those cases removes the only impediment to judicial cognizance of the claims stated in the present complaint.
177
The justiciability of the present claims being established, any relief accorded can be fashioned in the light of wellknown principles of equity.5
178
Mr. Justice CLARK, concurring.
179
One emerging from the rash of opinions with their accompanying clashing of views may well find himself suffering a mental blindness. The Court holds that the appellants have alleged a cause of action. However, it refuses to award relief here although the facts are undisputed—and fails to give the District Court any guidance whatever. One dissenting opinion, bursting with words that go through so much and conclude with so little, contemns the majority action as 'a massive repudiation of the experience of our whole past.' Another describes the complaint as merely asserting conclusory allegations that Tennessee's apportionment is 'incorrect,' 'arbitrary,' 'obsolete,' and 'unconstitutional.' I believe it can be shown that this case is distinguishable from earlier cases dealing with the distribution of political power by a State, that a patent violation of the Equal Protection Clause of the United States Constitution has been shown, and that an appropriate remedy may be formulated.
I.
180
I take the law of the case from MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3 (1948), which involved an attack under the Equal Protection Clause upon an Illinois election statute. The Court decided that case on its merits without hindrance from the 'political question' doctrine. Although the statute under attack was upheld, it is clear that the Court based its decision upon the determination that the statute represented a rational state policy. It stated:
181
'It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.' Id., at 284, 69 S.Ct. at 2. (Emphasis supplied.)
182
The other cases upon which my Brethren dwell are all distinguishable or inapposite. The widely heralded case of Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946), was one not only in which the Court was bobtailed but in which there was no majority opinion. Indeed, even the 'political question' point in Mr. Justice PRANKFURTER'S opinion was no more than an alternative ground.1 Moreover, the appellants did not present an equal protection argument.2 While it has served as a Mother Hubbard to most of the subsequent cases, I feel it was in that respect ill cast and for all of these reasons put it to one side.3 Likewise, I do not consider the Guaranty Clause cases based on Art. I, § 4, of the Constitution, because it is not invoked here and it involves different criteria, as the Court's opinion indicates. Cases resting on various other considerations not present here, such as Radford v. Gary, 352 U.S. 991, 77 S.Ct. 559, 1 L.Ed.2d 540 (1957) (lack of equity); Kidd v. McCanless, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157 (1956) (adequate state grounds supporting the state judgment); Anderson v. Jordan, 343 U.S. 912, 72 S.Ct. 648, 96 L.Ed. 1328 (1952) (adequate state grounds); Remmey v. Smith, 342 U.S. 916, 72 S.Ct. 368, 96 L.Ed. 685 (1952) (failure to exhaust state procedures), are of course not controlling. Finally, the Georgia county-unit-system cases, such as South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834 (1950), reflect the viewpoint of MacDougall, i.e., to refrain from intervening where there is some rational policy behind the State's system.4
II.
183
The controlling facts cannot be disputed. It appears from the record that 37% of the voters of Tennessee elect 20 of the 33 Senators while 40% of the voters elect 6o of the 99 members of the House. But this might not on its face be an 'invidious discrimination,' Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955), for a 'statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).
184
It is true that the apportionment policy incorporated in Tennessee's Constitution, i.e., state-wide numerical equality of representation with certain minor qualifications,5 is a rational one. On a county-by-county comparison a districting plan based thereon naturally will have disparities in representation due to the qualifications. But this to my mind does not raise constitutional problems, for the overall policy is reasonable. However, the root of the trouble is not in Tennessee's Constitution, for admittedly its policy has not been followed. The discrimination lies in the action of Tennessee's Assembly in allocating legislative seats to counties or districts created by it. Try as one may, Tennessee's apportionment just cannot be made to fit the pattern cut by its Constitution. This was the finding of the District Court. The policy of the Constitution referred to by the dissenters, therefore, is of no relevance here. We must examine what the Assembly has done.6 The frequency and magnitude of the inequalities in the present districting admit of no policy whatever. An examination of Table I accompanying this opinion, 369 U.S., p. 262, 82 S.Ct., p. 734, conclusively reveals that the apportionment picture in Tennessee is a topsy-turvical of gigantic proportions. This is not to say that some of the disparity cannot be explained, but when the entire table is examined—comparing the voting strength of counties of like population as well as contrasting that of the smaller with the larger counties—it leaves but one conclusion, namely that Tennessee's apportionment is a crazy quilt without rational basis. At the risk of being accused of picking out a few of the horribles I shall allude to a series of examples that are taken from Table I.
185
As is admitted, there is a wide disparity of voting strength between the large and small counties. Some samples are: Moore County has a total representation of two7 with a population (2,340) of only one-eleventh of Rutherford County (25,316) with the same representation; Decatur County (5,563) has the same representation as Carter (23,303) though the latter has four times the population; likewise, Loudon County (13,264), Houston (3,084), and Anderson County (33,990) have the same representation, i.e., 1.25 each. But it is said that in this illustration all of the underrepresented counties contain municipalities of over 10,000 population and they therefore should be included under the 'urban' classification, rationalizing this disparity as an attempt to effect a ruralurban political balance. But in so doing one is caught up in the backlash of his own bull whip, for many counties have municipalities with a population exceeding 10,000, yet the same invidious discrimination is present. For example:
186
County............... Population. Representation
Carter................. 23,303. 1.10
Maury.................. 24,556. 2.25
Washington............. 36,967. 1.93
187
Madison................ 37,245. 3.50 Likewise, counties with no municipality of over 10,000 suffer a similar discrimination:
188
County............. Population. Representation
Grundy............... 6,540. 0.95
Chester.............. 6,391. 2.00
Cumberland........... 9,593. 0.63
Crockett............. 9,676. 2.00
Loudon............... 13,264. 1.25
Fayette.............. 13,577. 2.50
189
This could not be an effort to attain political balance between rural and urban populations. Since discrimination is present among counties of like population, the plan is neither consistent nor rational. It discriminates horizontally creating gross disparities between rural areas themselves as well as between urban areas themselves,8 still maintaining the wide vertical disparity already pointed out between rural and urban.
190
It is also insisted that the representation formula used above (see note 7) is 'patently deficient' because 'it eliminates from consideration the relative voting power of the counties that are joined together in a single election district.' This is a strange claim coming from those who rely on the proposition that 'the voice of every voter' need not have 'approximate equality.' Indeed, representative government, as they say, is not necessarily one of 'bare numbers.' The use of floterial districts in our political system is not ordinarily based on the theory that the floterial representative is splintered among the counties of his district per relative population. His function is to represent the whole district. However, I shall meet the charge on its own ground and by use of its 'adjusted 'total representation" formula show that the present apportionment is loco. For example, compare some 'urban' areas of like population, using the HARLAN formula:
191
County Population Representation
Washington........... 36,967. 2.65
Madison.............. 37,245. 4.87
Carter............... 23,303. 1.48
Greene............... 23,649. 2.05
Maury................ 24,556. 3.81
Coffee............... 13,406. 2.32
Hamblen.............. 14,090. 1.07
192
And now, using the same formula, compare some so-called 'rural' areas of like population:
193
County Population Representation
Moore................ 2,340. 1.23
Pickett.............. 2,565. .22
Stewart.............. 5,238. 1.60
Cheatham............. 5,263. .74
Chester.............. 6,391. 1.36
Grundy............... 6,540. .69
Smith................ 8,731. 2.04
Unicoi............... 8,787. 0.40
194
And for counties with similar representation but with gross differences in population, take:
195
County Population Representation
Sullivan............. 55,712. 4.07
Maury................ 24,556. 3.81
Blount............... 30,353. 2.12
Coffee............... 13,406. 2.32
196
These cannot be 'distorted effects,' for here the same formula proposed by the dissenters is used and the result is even 'a crazier' quilt.
197
The truth is that—although this case has been here for two years and has had over six hours' argument (three times the ordinary case) and has been most carefully considered over and over again by us in Conference and individually—no one, not even the State nor the dissenters, has come up with any rational basis for Tennessee's apportionment statute.
198
No one—except the dissenters advocating the HARLAN 'adjusted 'total representation" formula—contends that mathematical equality among voters is required by the Equal Protection Clause. But certainly there must be some rational design to a State's districting. The discrimination here does not fit any pattern—as I have said, it is but a crazy quilt. My Brother HARLAN contends that other proposed apportionment plans contain disparities. Instead of chasing those rabbits he should first pause long enough to meet appellants' proof of discrimination by showing that in fact the present plan follows a rational policy. Not being able to do this, he merely counters with such generalities as 'classic legislative judgment,' no 'significant discrepancy,' and 'de minimis departures.' I submit that even a casual glance at the present apportionment picture shows these conclusions to be entirely fanciful. If present representation has a policy at all, it is to maintain the status quo of invidious discrimination at any cost. Like the District Court, I conclude that appellants have met the burden of showing 'Tennessee is guilty of a clear violation of the state constitution and of the (federal) rights of the plaintiffs. * * *'
III.
199
Although I find the Tennessee apportionment statute offends the Equal Protection Clause, I would not consider intervention by this Court into so delicate a field if there were any other relief available to the people of Tennessee. But the majority of the people of Tennessee have no 'PRACTICAL OPPORTUNITIES FOR EXERTING THEir political weight at the polls' to correct the existing 'invidious discrimination.' Tennessee has no initiative and referendum. I have searched diligently for other 'practical opportunities' present under the law. I find none other than through the federal courts. The majority of the voters have been caught up in a legislative strait jacket. Tennessee has an 'informed, civically militant electorate' and 'an aroused popular conscience,' but it does not sear 'the conscience of the people's representatives.' This is because the legislative policy has riveted the present seats in the Assembly to their respective constituencies, and by the votes of their incumbents a reapportionment of any kind is prevented. The people have been rebuffed at the hands of the Assembly; they have tried the constitutional convention route, but since the call must originate in the Assembly it, too, has been fruitless. They have tried Tennessee courts with the same result,9 and Governors have fought the tide only to flounder. It is said that there is recourse in Congress and perhaps that may be, but from a practical standpoint this is without substance. To date Congress has never undertaken such a task in any State. We therefore must conclude that the people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of their state government
IV.
200
Finally, we msut consider if there are any appropriate modes of effective judicial relief. The federal courts are of course not forums for political debate, nor should they resolve themselves into state constitutional conventions or legislative assemblies. Nor should their jurisdiction be exercised in the hope that such a declaration as is made today may have the direct effect of bringing on legislative action and relieving the courts of the problem of fashioning relief. To my mind this would be nothing less than blackjacking the Assembly into reapportioning the State. If judicial competence were lacking to fashion an effective decree, I would dismiss this appeal. However, like the Solicitor General of the United States, I see no such difficulty in the position of this case. One plan might be to start with the existing assembly districts, consolidate some of them, and award the seats thus released to those counties suffering the most egregious discrimination. Other possibilities are present and might be more effective. But the plan here suggested would at least release the stranglehold now on the Assembly and permit it to redistrict itself.
201
In this regard the appellants have proposed a plan based on the rationale of state-wide equal representation. Not believing that numerical equality of representation throughout a State is constitutionally required, I would not apply such a standard albeit a permissive one. Nevertheless, the dissenters attack it by the application of the HARLAN 'adjusted 'total representation" formula. The result is that some isolated inequalities are shown, but this in itself does not make the proposed plan irrational or place it in the 'crazy quilt' category. Such inequalities, as the dissenters point out in attempting to support the present apportionment as rational, are explainable. Moreover, there is no requirement that any plan have mathematical exactness in its application. Only where, as here, the total picture reveals incommensurables of both magnitude and frequency can it be said that there is present an invidious discrimination.
202
In view of the detailed study that the Court has given this problem, it is unfortunate that a decision is not reached on the merits. The majority appears to hold, at least sub silentio, that an invidious discrimination is present, but it remands to the three-judge court for it to make what is certain to be that formal determination. It is true that Tennessee has not filed a formal answer. However, it has filed voluminous papers and made extended arguments supporting its position. At no time has it been able to contradict the appellants' factual claims; it has offered no rational explanation for the present apportionment; indeed, it has indicated that there are none known to it. As I have emphasized, the case proceeded to the point before the three-judge court that it was able to find an invidious discrimination factually present, and the State has not contested that holding here. In view of all this background I doubt if anything more can be offered or will be gained by the State on remand, other than time. Nevertheless, not being able to muster a court to dispose of the case on the merits, I concur in the opinion of the majority and acquiesce in the decision to remand. However, in fairness I do think that Tennessee is entitled to have my idea of what it faces on the record before us and the trial court some light as to how it might proceed.
203
As John Rutledge (later Chief Justice) said 175 years ago in the course of the Constitutional Convention, a chief function of the Court is to secure the national rights.10 Its decision today supports the proposition for which our forebears fought and many died, namely, that to be fully conformable to the principle of right, the form of government must be representative.11 That is the keystone upon which our government was founded and lacking which no republic can survive. It is well for this Court to practice self-restraint and discipline in constitutional adjudication, but never in its history have those principles received sanction where the national rights of so many have been so clearly infringed for so long a time. National respect for the courts is more enhanced through the forthright enforcement of those rights rather than by rendering them nugatory through the interposition of subterfuges. In my view the ultimate decision today is in the greatest tradition of this Court.
TABLE I
Present Proposed total
Present total total representation
204
representation representation (appellants'
205
using using J. plan), using J.
1950 voting J.Clark's Harlan's Harlan's
206
County population formula formula formula
Van Buren. 2,039. .63 .23 .11
Moore.. 2,340. 2.00 1.23 .18
Pickett. 2,565. .70 .22 .24
Sequatchie. 2,904 .63 .33 .19
Meigs.. 3,039. .93 .48 .17
Houston. 3,084. 1.25 .46 .24
Trousdale. 3,351. 1.33 .43 .12
Lewis.. 3,413. 1.25 .39 .25
Perry.. 3,711. 1.50 .71 .40
Bledsoe. 4,198. .63 .49 .24
Clay... 4,528. .70 .40 .42
Union.. 4,600. .76 .37 .45
Hancock. 4,710. .93 .62 .49
Stewart. 5,238. 1.75 1.60 .41
Cheatham. 5,263. 1.33 .72 .20
Cannon. 5,341. 2.00 1.43 .52
Decatur. 5,563. 1.10 .79 .52
Lake... 6,252. 2.00 1.44 .41
Chester. 6,391. 2.00 1.36 .19
Grundy. 6,540. .95 .69 .43
Humphreys. 6,588. 1.25 1.39 .72
Johnson. 6,649. 1.10 .42 .43
Present Proposed total
Present total total representation
207
representation representation (appellants'
208
using using J. plan), using J.
1950 voting J.Clark's Harlan's Harlan's
209
County population formula formula formula
Jackson. 6,719. 1.50 1.43 .63
De Kalb. 6,984. 2.00 1.56 .68
Benton. 7,023. 1.10 1.01 .66
Fentress. 7,057. .70 .62 .64
Grainger. 7,125. .93 .94 .65
Wayne.. 7,176. 1.25 .69 .76
Polk... 7,330. 1.25 .68 .73
Hickman. 7,598. 2.00 1.85 .80
Macon.. 7,974. 1.33 1.01 .61
Morgan. 8,308. .93 .59 .75
Scott.. 8,417. .76 .68 .62
Smith.. 8,731. 2.50 2.04 .67
Unicoi. 8,787. .93 .40 .63
Rhea... 8,937. .93 1.42 .21
White.. 9,244. 1.43 1.69 .90
Overton. 9,474. 1.70 1.83 .89
Hardin. 9,577. 1.60 1.61 .93
Cumberland. 9,593 .63 1.10 .87
Crockett. 9,676. 2.00 1.66 .63
Henderson. 10,199 1.50 .78 .96
Marion. 10,998. 1.75 1.73 .72
Marshall. 11,288. 2.50 2.28 .84
Dickson. 11,294. 1.75 2.29 1.23
Jefferson. 11,359 1.10 .87 1.03
McNairy. 11,601. 1.60 1.74 1.13
Cocke. 12,572. 1.60 1.46 .89
Sevier. 12,793. 1.60 1.47 .69
Claiborne. 12,799 1.43 1.61 1.34
Monroe. 12,884. 1.75 1.68 1.30
Loudon. 13,264. 1.25 .28 .52
Warren. 13,337. 1.75 1.89 1.68
Coffee. 13,406. 2.00 2.32 1.68
Hardeman. 13,565. 1.60 1.86 1.11
Fayette. 13,577. 2.50 2.48 1.11
Haywood. 13,934. 2.50 2.52 1.69
Williamson. 14,064 2.33 2.96 1.71
Present Proposed total
Present total total representation
210
representation representation (appellants'
211
using using J. plan), using J.
1950 voting J.Clark's Harlan's Harlan's
212
County population formula formula formula
Hamblen 14,090 1.10 1.07 1.67
Franklin 14,297 1.75 1.95 1.73
Lauderdale 14,413 2.50 2.45 1.73
Bedford 14,732 2.00 1.45 1.74
Lincoln 15,092 2.50 2.72 1.77
Henry 15,465 2.83 2.76 1.73
Lawrence 15,847 2.00 2.22 1.81
Giles 15,935 2.25 2.54 1.81
Tipton 15,944 3.00 1.68 1.13
Robertson 16,456 2.83 2.62 1.85
Wilson 16,459 3.00 3.03 1.21
Carroll 16,472 2.83 2.88 1.82
Hawkins 16,900 3.00 1.93 1.82
Putnam 17,071 1.70 2.50 1.86
Campbell 17,477 .76 1.40 1.94
Roane 17,639 1.75 1.26 1.30
Weakley 18,007 2.33 2.63 1.85
Bradley 18,273 1.25 1.67 1.92
McMinn 18,347 1.75 1.97 1.92
Obion 18,434 2.00 2.30 1.94
Dyer 20,062 2.00 2.36 2.32
Sumner 20,143 2.33 3.56 2.54
Carter 23,303 1.10 1.48 2.55
Greene 23,649 1.93 2.05 2.68
Maury 24,556 2.25 3.81 2.85
Rutherford 25,316 2.00 3.02 2.39
Montgomery 26,284 3.00 3.73 3.06
Gibson 29,832 5.00 5.00 2.86
Blount 30,353 1.60 2.12 2.19
Anderson 33,990 1.25 1.30 3.62
Washington 36,967 1.93 2.65 3.45
Madison 37,245 3.50 4.87 3.69
Sullivan 55,712 3.00 4.07 5.57
Hamilton 131,971 6.00 6.00 15.09
Knox 140,559 7.25 8.96 15.21
Davidson 211,930 12.50 12.93 21.57
213
Shelby 312,345 15.50 16.85 31.59 Mr. Justice STEWART, concurring.
214
The separate writings of my dissenting and concurring Brothers stray so far from the subject of today's decision as to convey, I think, a distressingly inaccurate impression of what the Court decides. For that reason, I think it appropriate, in joining the opinion of the Court, to emphasize in a few words what the opinion does and does not say.
215
The Court today decides three things and no more: '(a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) * * * that the appellants have standing to challenge the Tennessee apportionment statutes.' 369 U.S., pp. 197—198, 82 S.Ct., p. 699.
216
The complaint in this case asserts that Tennessee's system of apportionment is utterly arbitrary—without any possible justification in rationality. The District Court did not reach the merits of that claim, and this Court quite properly expresses no view on the subject. Contrary to the suggestion of my Brother HARLAN, the Court does not say or imply that 'state legislatures must be so structured as to reflect with approximate equality the voice of every voter.' 369 U.S., p. 332, 82 S.Ct., p. 772. The Court does not say or imply that there is anything in the Federal Constitution 'to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.' 369 U.S., p. 334, 82 S.Ct., p. 773. And contrary to the suggestion of my Brother DOUGLAS, the Court most assuredly does not decide the question, 'may a State weight the vote of one county or one district more heavily than it weights the vote in another?' 369 U.S., p. 244, 82 S.Ct., p. 724.
217
In MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, the Court held that the Equal Protection Clause does not 'deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.' 335 U.S. at 284, 69 S.Ct. at 2. In case after case arising under the Equal Protection Clause the Court has said what it said again only last Term—that 'the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others.' McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393. In case after case arising under that Clause we have also said that 'the burden of establishing the unconstitutionality of a statute rests on him who assails it.' Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070.
218
Today's decision does not turn its back on these settled precedents. I repeat, the Court today decides only: (1) that the District Court possessed jurisdiction of the subject matter; (2) that the complaint presents a justiciable controversy; (3) that the appellants have standing. My Brother CLARK has made a convincing prima facie showing that Tennessee's system of apportionment is in fact utterly arbitrary—without any possible justification in rationality. My Brother HARLAN has, with imagination and ingenuity, hypothesized possibly rational bases for Tennessee's system. But the merits of this case are not before us now. The defendants have not yet had an opportunity to be heard in defense of the State's system of apportionment; indeed, they have not yet even filed an answer to the complaint. As in other cases, the proper place for the trial is in the trial court, not here.
219
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.
220
The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected only five years ago. The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between population and legislative representation—a wholly different matter from denial of the franchise to individuals because of race, color, religion or sex. Such a massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective exercise of the Court's 'judicial Power' not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court's position as the ultimate organ of 'the supreme Law of the Land' in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.
221
A hypothetical claim resting on abstract assumptions is now for the first time made the basis for affording illusory relief for a particular evil even though it foreshadows deeper and more pervasive difficulties in consequence. The claim is hypothetical and the assumptions are abstract because the Court does not vouchsafe the lower courts—state and federal—guidelines for formulating specific, definite, wholly unprecedented remedies for the inevitable litigations that today's umbrageous disposition is bound to stimulate in connection with politically motivated reapportionments in so many States. In such a setting, to promulgate jurisdiction in the abstract is meaningless. It is as devoid of reality as 'a brooding omnipresence in the sky,' for it conveys no intimation what relief, if any, a District Court is capable of affording that would not invite legislatures to play ducks and drakes with the judiciary. For this Court to direct the District Court to enforce a claim to which the Court has over the years consistently found itself required to deny legal enforcement and at the same time to find it necessary to withhold any guidance to the lower court how to enforce this turnabout, new legal claim, manifests an odd indeed an esoteric—conception of judicial propriety. One of the Court's supporting opinions, as elucidated by commentary, unwittingly affords a disheartening preview of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country without so much as adumbrating the basis for a legal calculus as a means of extrication. Even assuming the indispensable intellectual disinterestedness on the part of judges in such matters, they do not have accepted legal standards or criteria or even reliable analogies to draw upon for making judicial judgments. To charge courts with the task of accommodating the incommensurable factors of policy that underlie these mathematical puzzles is to attribute, however flatteringly, omnicompetence to judges. The Framers of the Constitution persistently rejected a proposal that embodied this assumption and Thomas Jefferson never entertained it.
222
Recent legislation, creating a district appropriately described as 'an atrocity of ingenuity,' is not unique. Considering the gross inequality among legislative electoral units within almost every State, the Court naturally shrinks from asserting that in districting at least substantial equality is a constitutional requirement enforceable by courts.* Room continues to be allowed for weighting. This of course implies that geography, economics, urbun-rural conflict, and all the other non-legal factors which have throughout our history entered into political districting are to some extent not to be ruled out in the undefined vista now opened up by review in the federal courts of state reapportionments. To some extent—aye, there's the rub. In effect, today's decision empowers the courts of the country to devise what should constitute the proper composition of the legislatures of the fifty States. If state courts should for one reason or another find themselves unable to discharge this task, the duty of doing so is put on the federal courts or on this Court, if State views do not satisfy this Court's notion of what is proper districting.
223
We were soothingly told at the bar of this Court that we need not worry about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a state-wide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court's admonition. This is not only a euphoric hope. It implies a sorry confession of judicial impotence in place of a frank acknowledgment that there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers carefully and with deliberate forethought refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope. This is the latest in the series of cases in which the Equal Protection and Due Process Clauses of the Fourteenth Amendment have been invoked in federal courts as restrictions upon the power of the States to allocate electoral weight among the voting populations of their various geographical subdivisions.1 The present action, which comes here on appeal from an order of a statutory three-judge District Court dismissing amended complaints seeking declaratory and injunctive relief, challenges the provisions of Tenn.Code Ann.1955, §§ 3—101 to 3—109, which apportion state representative and senatorial seats among Tennessee's ninety-five counties.
224
The original plaintiffs, citizens and qualified voters entitled to vote for members of the Tennessee Legislature in the several counties in which they respectively reside, bring this action in their own behalf and 'on behalf of all other voters in the State of Tennessee,' or, as they alternatively assert, 'on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who are similarly situated.' The cities of Knoxville and Chattanooga, and the Mayor of Nashville—on his own behalf as a qualified voter and, pursuant to an authorizing resolution by the Nashville City Council, as a representative of all the city's residents—were permitted to intervene as parties plaintiff.2 The defendants are executive officials charged with statutory duties in connection with state elections.3
225
The original plaintiff's amended complaint avers, in substance, the following.4 The Constitution of the State of Tennessee declares that 'elections shall be free and equal,' provides that no qualifications other than age, citizenship and specified residence requirements shall be attached to the right of suffrage, and prohibits denying to any person the suffrage to which he is entitled except upon conviction of an infamous crime. Art. I, § 5; Art. IV, § 1. It requires an enumeration of qualified voters within every term of ten years after 1871 and an apportionment of representatives and senators among the several counties or districts according to the number of qualified voters in each5 at the time of each decennial enumeration. Art. II, §§ 4, 5, 6. Notwithstanding these provisions, the State Legislature has not reapportioned itself since 1901. The Reapportionment Act of that year, Tenn.Acts 1901, c. 122, now Tenn. Code Ann.1955, §§ 3—101 to 3—109,6 was unconstitutional when enacted, because not preceded by the required enumeration of qualified voters and because it allocated legislative seats arbitrarily, unequally and discriminatorily, as measured by the 1900 federal census. Moreover, irrespective of the question of its validity in 1901, it is asserted that the Act became 'unconstitutional and obsolete' in 1911 by virtue of the decennial reapportionment requirement of the Tennessee Constitution. Continuing a 'purposeful and systematic plan to discriminate against a geographical class of persons,' recent Tennessee Legislatures have failed, as did their predecessors, to enact reapportionment legislation, although a number of bills providing for reapportionment have been introduced. Because of population shifts since 1901, the apportionment fixed by the Act of that year and still in effect is not proportionate to population, denies to the counties in which the plaintiffs live an additional number of representatives to which they are entitled, and renders plaintiffs' votes 'not as effective as the votes of the voters residing in other senatorial and representative districts * * *.' Plaintiffs 'suffer a debasement of their votes by virtue of the incorrect, arbitrary, obsolete and unconstitutional apportionment of the General Assembly * * *,' and the totality of the malapportionment's effect—which permits a minority of about thirty-seven percent of the voting population of the State to control twenty of the thirty-three members of Tennessee's Senate, and a minority of forty percent of the voting population to control sixty-three of the ninety-nine members of the House—results in 'a distortion of the constitutional system' established by the Federal and State Constitutions, prevents the General Assembly 'from being a body representative of the people of the State of Tennessee, * * *' and is 'contrary to the basic principle of representative government * * *,' and 'contrary to the philosophy of government in the United States and all anglo-Saxon jurisprudence * * *.'
226
Exhibits appended to the complaint purport to demonstrate the extent of the inequalities of which plaintiffs complain. Based upon 'approximate voting population,'7 these set forth figures showing that the State Senator from Tennessee's most populous senatorial district represents five and two-tenths times the number of voters represented by the Senator from the least populous district, while the corresponding ratio for most and least populous House districts is more than eighteen to one. The General Assembly thus apportioned has discriminated against the underrepresented counties and in favor of the overrepresented counties in the collection and distribution of various taxes and tax revenues, notably in the distribution of school and highway-improvement founds,8 this discrimination being 'made possible and effective' by the Legislature's failure to reapportion itself. Plaintiffs conclude that election of the State Legislature pursuant to the apportionment fixed by the 1901 Act violates the Tennessee Constitution and deprives them of due process of law and of the equal protection of the laws guaranteed by the Fourteenth Amendment. Their prayer below was for a declaratory judgment striking down the Act, an injunction restraining defendants from any acts necessary to the holding of elections in the districts prescribed by Tenn.Code Ann. 1955, §§ 3—101 to 3—109, until such time as the legislature is reapportioned 'according to the Constitution of the State of Tennessee,' and an order directing defendants to declare the next primary and general elections for members of the Tennessee Legislature on an atlarge basis—the thirty-three senatorial candidates and the ninety-nine representative candidates receiving the highest number of votes to be declared elected.9
227
Motions to dismiss for want of jurisdiction of the subject matter and for failure to state a claim were made and granted, 179 F.Supp. 824, the District Court relying upon this Court's series of decisions beginning with Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, rehearing denied, 329 U.S. 825, 67 S.Ct. 118, 91 L.Ed. 701, motion for reargument before the full bench denied, 329 U.S. 828, 67 S.Ct. 199, 91 L.Ed. 703. The original and intervening plaintiffs bring the case here on appeal. 364 U.S. 898, 81 S.Ct. 230, 5 L.Ed.2d 193. In this Court they have altered their request for relief, suggesting a 'step-by-step approach.' The first step is a remand to the District Court with directions to vacate the order dismissing the complaint and to enter an order retaining jurisdiction, providing 'the necessary spur to legislative action * * *.' If this proves insufficient, appellants will ask the 'additional spur' of an injunction prohibiting elections under the 1901 Act, or a declaration of the Act's unconstitutionality, or both. Finally, all other means failing, the District Court is invited by the plaintiffs, greatly daring, to order an election at large or redistrict the State itself or through a master. The Solicitor General of the United States, who has filed a brief amicus and argued in favor of reversal, asks the Court on this appeal to hold only that the District Court has 'jurisdiction' and may properly exercise it to entertain the plaintiffs' claims on the merits. This would leave to that court after remand the questions of the challenged statute's constitutionality and of some undefined, unadumbrated relief in the event a constitutional violation is found. After an argument at the last Term, the case was set down for reargument, 366 U.S. 907, 81 S.Ct. 1082 and heard this Term.
I.
228
In sustaining appellants' claim, based on the Fourteenth Amendment, that the District Court may entertain this suit, this Court's uniform course of decision over the years is overruled or disregarded. Explicitly it begins with colegrove v. Green, supra, decided in 1946, but its roots run deep in the Court's historic adjudicatory process.
229
Colegrove held that a federal court should not entertain an action for declaratory and injunctive relief to adjudicate the constitutionality, under the Equal Protection Clause and other federal constitutional and statutory provisions, of a state statute establishing the respective districts for the State's election of Representatives to the Congress. Two opinions were written by the four Justices who composed the majority of the seven sitting members of the Court. Both opinions joining in the result in Colegrove v. Green agreed that considerations were controlling which dictated denial of jurisdiction though not in the strict sense of want of power. While the two opinions show a divergence of view regarding some of these considerations, there are important points of concurrence. Both opinions demonstrate a predominant concern, first, with avoiding federal judicial involvement in matters traditionally left to legislative policy making; second, with respect to the difficulty—in view of the nature of the problems of apportionment and its history in this country—of drawing on or devising judicial standards for judgment, as opposed to legislative determinations, of the part which mere numerical equality among voters should play as a criterion for the allocation of political power; and, third, with problems of finding appropriate modes of relief—particularly, the problem of resolving the essentially political issue of the relative merits of atlarge elections and elections held in districts of unequal population.
230
The broad applicability of these considerations—summarized in the loose shorthand phrase, 'political question'—in cases involving a State's apportionment of voting power among its numerous localities has led the Court, since 1946, to recognize their controlling effect in a variety of situations. (In all these cases decision was by a full Court.) The 'political question' principle as applied in Colegrove has found wide application commensurate with its function as 'one of the rules basic to the federal system and this Court's appropriate place within that structure.' Rescue Army v. Municipal Court, 331 U.S. 549, 570, 67 S.Ct. 1409, 1420, 91 L.Ed. 1666. In Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262, litigants brought suit in a Federal District Court challenging as offensive to the Equal Protection Clause Illinois' state legislative-apportionment laws. They pointed to state constitutional provisions requiring decennial reapportionment and allocation of seats in proportion to population, alleged a failure to reapportion for more than forty-five years—during which time extensive population shifts had rendered the legislative districts grossly unequal—and sought declaratory and injunctive relief with respect to all elections to be held thereafter. After the complaint was dismissed by the District Court, this Court dismissed an appeal for want of a substantial federal question. A similar District Court decision was affirmed here in Radford v. Gary, 352 U.S. 991, 77 S.Ct. 559, 1 L.Ed.2d 540. And cf. Remmey v. Smith, 342 U.S. 916, 72 S.Ct. 368, 96 L.Ed. 685. In Tedesco v. Board of Supervisors, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357, the Court declined to hear, for want of a substantial federal question, the claim that the division of a municipality into voting districts of unequal population for the selection for councilmen fell afoul of the Fourteenth Amendment, and in Cox v. Peters, 342 U.S. 936, 72 S.Ct. 559, 96 L.Ed. 697, rehearing denied, 343 U.S. 921, 72 S.Ct. 675, 96 L.Ed. 1334, it found no substantial federal question raised by a state court's dismissal of a claim for damages for 'devaluation' of plaintiff's vote by application of Georgia's county-unit system in a primary election for the Democratic gubernatorial candidate. The same Georgia system was subsequently attacked in a complaint for declaratory judgment and an injunction; the federal district judge declined to take the requisite steps for the convening of a statutory three-judge court; and this Court, in Hartsfield v. Sloan, 357 U.S. 916, 78 S.Ct. 1363, 2 L.Ed.2d 1363, denied a motion for leave to file a petition for a writ of mandamus to compel the district judge to act. In MacDougall v. Green, 335 U.S. 281, 283, 69 S.Ct. 1, 93 L.Ed. 3, the Court noted that 'To assume that political power is a function exclusively of numbers is to disregard the practicalities of government,' and, citing the Colegrove cases, declined to find in 'such broad constitutional concepts as due process and equal protection of the laws,' id., at 284, 69 S.Ct. at 2, a warrant for federal judicial invalidation of an Illinois statute requiring as a condition for the formation of a new political party the securing of at least two hundred signatures from each of fifty counties. And in South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834, another suit attacking Georgia's county-unit law, it affirmed a District Court dismissal, saying
231
'Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state's geographical distribution of electoral strength among its political subdivisions.' Id., at 277, 70 S.Ct. at 642.
232
Of course it is important to recognize particular, relevant diversities among comprehensively similar situations. Appellants seek to distinguish several of this Court's prior decisions on one or another ground—Colegrove v. Green on the ground that federal, not state, legislative apportionment was involved; Remmey v. Smith on the ground that state judicial remedies had not been tried; Radford v. Gary on the ground that Oklahoma has the initiative, whereas Tennessee does not. It would only darken counsel to discuss the relevance and significance of each of these assertedly distinguishing factors here and in the context of this entire line of cases. Suffice it that they do not serve to distinguish Colegrove v. Barrett, supra, which is on all fours with the present case, or to distinguish Kidd v. McCanless, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157, in which the full Court without dissent, only five years ago, dismissed on authority of Colegrove v. Green and Anderson v. Jordan, 343 U.S. 912, 72 S.Ct. 648, 96 L.Ed. 1328, an appeal from the Supreme Court of Tennessee in which a precisely similar attack was made upon the very statute now challenged. If the weight and momentum of an unvarying course of carefully considered decisions are to be respected, appellants' claims are foreclosed not only by precedents governing the exact facts of the present case but are themselves supported by authority the more persuasive in that it gives effect to the Colegrove principle in distinctly varying circumstances in which state arrangements allocating relative degrees of political influence among geographic groups of voters were challenged under the Fourteenth Amendment.
II.
233
The colegrove doctrine, in the form in which repeated decisions have settled it, was not an innovation. It represents long judicial thought and experience. From its earliest opinions this Court has consistently recognized a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as 'political questions' is rather a form of stating this conclusion than revealing of analysis.10 Some of the cases so labelled have no relevance here. But from others emerge unifying considerations that are compelling.
234
1. The cases concerning war or foreign affairs, for example, are usually explained by the necessity of the country's speaking with one voice in such matters. While this concern alone undoubtedly accounts for many of the decisions,11 others do not fit the pattern. It would hardly embarrass the conduct of war were this Court to determine, in connection with private transactions between litigants, the date upon which war is to be deemed terminated. But the Court has refused to do so. See, e.g., The Protector, 12 Wall. 700, 20 L.Ed. 463; Brown v. Hiatts, 15 Wall. 177, 21 L.Ed. 128; Adger v. Alston, 15 Wall. 555, 21 L.Ed. 234; Williams v. Bruffy, 96 U.S. 176, 192—193, 24 L.Ed. 716. It does not suffice to explain such cases as Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881—deferring to political determination the question of the duration of war for purposes of the Presidential power to deport alien enemies—that judicial intruction would seriously impede the President's power effectively to protect the country's interests in time of war. Of course, this is true; but the precise issue presented is the duration of the time of war which demands the power. Cf. Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537; Lamar v. Browne, 92 U.S. 187, 193, 23 L.Ed. 650; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194; Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469. And even for the purpose of determining the extent of congressional regulatory power over the tribes and dependent communities of Indians, it is ordinarily for Congress, not the Court, to determine whether or not a particular Indian group retains the characteristics constitutionally requisite to confer the power.12 E.g., United States v. Holliday, 3 Wall. 407, 18 L.Ed. 182; Tiger v. Western Investment Co., 221 U.S. 286, 31 S.Ct. 578, 55 L.Ed. 738; United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107. A controlling factor in such cases is that, decision respecting these kinds of complex matters of policy being traditionally committed not to courts but to the political agencies of government for determination by criteria of political expendiency, there exists no standard ascertainable by settled judicial experience or process by reference to which a political decision affecting the question at issue between the parties can be judged. Where the question arises in the course of a litigation involving primarily the adjudication of other issues between the litigants, the Court accepts as a basis for adjudication the political departments' decision of it. But where its determination is the sole function to be served by the exercise of the judicial power, the Court will not entertain the action. See Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568. The dominant consideration is 'the lack of satisfactory criteria for a judicial determination * * *.' Mr. Chief Justice Hughes, for the Court, in Coleman v. Miller, 307 U.S. 433, 454—455, 59 S.Ct. 972, 982, 83 L.Ed. 1385. Compare United States v. Rogers, 4 How. 567, 572, 11 L.Ed. 1105, with Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483.13
235
This may be, like so many questions of law, a matter of degree. Questions have arisen under the Constitution to which adjudication gives answer although the criteria for decision are less than unwavering bright lines. Often in these cases illumination was found in the federal structures established by, or the underlying presuppositions of, the Constitution. With respect to such questions, the Court has recognized that, concerning a particular power of Congress put in issue, '* * * effective restraints on its exercise must proceed from political rather than from judicial processes.' Wickard v. Filburn, 317 U.S. 111, 120, 63 S.Ct. 82, 87, 87 L.Ed. 122. It is also true that even regarding the duration of war and the status of Indian tribes, referred to above as subjects ordinarily committed exclusively to the nonjudicial branches, the Court has suggested that some limitations exist upon the range within which the decisions of those branches will be permitted to go unreviewed. See United States v. Sandoval, supra, 231 U.S. at 46, 34 S.Ct. at 5; cf. Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841. But this is merely to acknowledge that particular circumstances may differ so greatly in degree as to differ thereby in kind, and that, although within a certain range of cases on a continuum, no standard of distinction can be found to tell between them, other cases will fall above or below the range. The doctrine of political questions, like any other, is not to be applied beyond the limits of its own logic, with all the quiddities and abstract disharmonies it may manifest. See the disposition of contentions based on logically distorting views of Colegrove v. Green and Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151, in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110.
236
2. The Court has been particularly unwilling to interven in matters concerning the structure and organization of the political institutions of the States. The abstention from judicial entry into such areas has been greater even than that which marks the Court's ordinary approach to issues of state power challenged under broad federal guarantees. 'We should be very reluctant to decide that we had jurisdiction in such a case, and thus in an action of this nature to supervise and review the political administration of a state government by its own officials and through its own courts. The jurisdiction of this court would only exist in case there had been * * * such a plain and substantial departure from the fundamental principles upon which our government is based that it could with truth and propriety be said that, if the judgment were suffered to remain, the party aggrieved would be deprived of his life, liberty, or property in violation of the provisions of the federal constitution.' Wilson v. North Carolina, 169 U.S. 586, 596, 18 S.Ct. 435, 439, 42 L.Ed. 865. See Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187; Walton v. House of Representatives, 265 U.S. 487, 44 S.Ct. 628, 68 L.Ed. 1115; Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. Cf. In re Sawyer, 124 U.S. 200, 220 221, 8 S.Ct. 482, 492—493, 31 L.Ed. 402.
237
Where, however, state law has made particular federal questions determinative of relations within the structure of state government, not in challenge of it, the Court has resolved such narrow, legally defined questions in proper proceedings. See Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 12 S.Ct. 375, 36 L.Ed. 103. In such instances there is no conflict between state policy and the exercise of federal judicial power. This distinction explains the decisions in Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795; Koenig v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805; and Carroll v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807, in which the Court released state constitutional provisions prescribing local lawmaking procedures from misconceived restriction of superior federal requirements. Adjudication of the federal claim involved in those cases was not one demanding the accommodation of conflicting interests for which no readily accessible judicial standards could be found. See McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869, in which, in a case coming here on writ of error from the judgment of a state court which had entertained it on the merits, the Court treated as justiciable the claim that a State could not constitutionally select its presidential electors by districts, but held that Art. II, § 1, cl. 2, of the Constitution left the mode of choosing electors in the absolute discretion of the States. Cf. Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817; Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252. To read with literalness the abstracted jurisdictional discussion in the McPherson opinion reveals the danger of conceptions of 'justiciability' derived from talk and not from the effective decision in a case. In probing beneath the surface of cases in which the Court has declined to interfere with the actions of political organs of government, of decisive significance is whether in each situation the ultimate decision has been to intervene or not to intervene. Compare the reliance in South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834, on MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, and the 'jurisdictional' form of the opinion in Wilson v. North Carolina, 169 U.S. 586, 596, 18 S.Ct. 435, 439, 43 L.Ed. 865, supra.
238
3. The cases involving Negro disfranchisement are no exception to the principle of avoiding federal judicial intervention into matters of state government in the absence of an explicit and clear constitutional imperative. For here the controlling command of Supreme Law is plain and unequivocal. An end of discrimination against the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it is no less true of the Equal Protection Clause of the Fourteenth. Slaughter-House Cases, 16 Wall. 36, 67—72, 21 L.Ed. 394; Strauder v. West Virginia, 100 U.S. 303, 306—307, 25 L.Ed. 664; Nixon v. Herndon, 273 U.S. 536, 541, 47 S.Ct. 446, 447, 71 L.Ed. 759. Thus the Court, in cases involving discrimination against the Negro's right to vote, has recognized not only the action at law for damages,14 but, in appropriate circumstances, the extraordinary remedy of declaratory or injunctive relief.15 Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152.16 Injunctions in these cases, it should be noted, would not have restrained statewide general elections. Compare Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909.
239
4. The Court has refused to exercise its jurisdiction to pass on 'abstract questions of political power, of sovereignty, of government.' Massachusetts v. Mellon, 262 U.S. 447, 485, 43 S.Ct. 597, 600, 67 L.Ed. 1078. See Texas v. Interstate Commerce Commission, 258 U.S. 158, 162, 42 S.Ct. 261, 262, 66 L.Ed. 531; New Jersey v. Sargent, 269 U.S. 328, 337, 46 S.Ct. 122, 124, 70 L.Ed. 289. The 'political question' doctrine, in this aspect, reflects the policies underlying the requirement of 'standing': that the litigant who would challenge official action must claim infringement of an interest particular and personal to himself, as distinguished from a cause of dissatisfaction with the general frame and functioning of government—a complaint that the political institutions are awry. See Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89—91, 67 S.Ct. 556, 564—565, 91 L.Ed. 754. What renders cases of this kind non-justiciable is not necessarily the nature of the parties to them, for the Court has resolved other issues between similar parties;17 nor is it the nature of the legal question involved, for the same type of question has been adjudicated when presented in other forms of controversy.18 The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade. See Texas v. White, 7 Wall. 700, 19 L.Ed. 227; White v. Hart, 13 Wall. 646, 20 L.Ed. 685; Phillips v. Payne, 92 U.S. 130, 23 L.Ed. 649; Marsh v. Burroughs, Fed.Cas.No. 9,112, 1 Woods 463, 471—472 (Bradley, Circuit Justice); cf. Wilson v. Shaw, 204 U.S. 24, 27 S.Ct. 233, 51 L.Ed. 351; but see Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853. Thus, where the Cherokee Nation sought by an original motion to restrain the State of Georgia from the enforcement of laws which assimilated Cherokee territory to the State's counties, abrogated Cherokee law, and abolished Cherokee government, the Court held that such a claim was not judicially cognizable. Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25.19 And in Georgia v. Stanton, 6 Wall. 50, 18 L.Ed. 721, the Court dismissed for want of jurisdiction a bill by the State of Georgia seeking to enjoin enforcement of the Reconstruction Acts on the ground that the command by military districts which they established extinguished existing state government and replaced it with a form of government unauthorized by the Constitution:20
240
'That these matters, both as stated in the body of the bill, and, in the prayers for relief, call for the judgment of the court upon political questions, and, upon rights, not of persons or property, but of a political character, will hardly be denied. For the rights for the protection of which our authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court.' Id., at 77.21
241
5. The influence of these converging considerations—the caution not to undertake decision where standards meet for judicial judgment are lacking, the reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate, the unwillingness to make courts arbiters of the broad issues of political organization historically committed to other institutions and for whose adjustment the judicial process is illadapted—has been decisive of the settled line of cases, reaching back more than a century, which holds that Art. IV, § 4, of the Constitution, guaranteeing to the States 'a Republican Form of Government,'22 is not enforceable through the courts. E.g., O'Neill v. Leamer, 239 U.S. 244, 36 S.Ct. 54, 60 L.Ed. 249; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685; Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913; Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 57 S.Ct. 549, 81 L.Ed. 835.23 Claims resting on this specific guarantee of the Constitution have been held non-justiciable which challenged state distribution of powers between the legislative and judicial branches, Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 50 S.Ct. 228, 74 L.Ed. 710, state delegation of power to municipalities, Kiernan v. Portland, Oregon, 223 U.S. 151, 32 S.Ct. 231, 56 L.Ed. 386, state adoption of the referendum as a legislative institution, Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569, 36 S.Ct. 708, 710, 60 L.Ed. 1172, and state restriction upon the power of state constitutional amendment, Marshall v. Dye, 231 U.S. 250, 256—257, 34 S.Ct. 92, 93 94, 58 L.Ed. 206. The subject was fully considered in Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377, in which the Court dismissed for want of jurisdiction a writ of error attacking a state licensetax statute enacted by the initiative, on the claim that this mode of legislation was inconsistent with a Republican Form of Government and violated the Equal Protection Clause and other federal guarantees. After noting '* * * the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction to the doctrine which underlies and would be necessarily involved in sustaining the propositions contended for,'24 the Court said:
242
'* * * (The) essentially political nature (of this claim) is at once made manifest by understanding that the assault which the contention here advanced makes it (sic) not on the tax as a tax, but on the State as a State. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right to exist as a State, republican in form.' Id., at 150—151, 32 S.Ct. at 231.
243
The starting point of the doctrine applied in these cases is, of course, Luther v. Borden, 7 How. 1, 12 L.Ed. 581. The case arose out of the Dorr Rebellion in Rhode Island in 1841—1842. Rhode Island, at the time of the separation from England, had not adopted a new constitution but had continued, in its existence as an independent State, under its original royal Charter, with certain statutory alterations. This frame of government provided no means for amendment of the fundamental law; the right of suffrage was to be prescribed by legislation, which limited it to freeholders. In the 1830's, largely because of the growth of towns in which there developed a propertied class whose means were not represented by freehold estates, dissatisfaction arose with the suffrage qualifications of the charter government. In addition, population shifts had caused a dated apportionment of seats in the lower house to yield substantial numerical inequality of political influence, even among qualified voters. The towns felt themselves underrepresented, and agitation began for electoral reform. When the charter government failed to respond, popular meetings of those who favored the broader suffrage were held and delegates elected to a convention which met and drafted a state constitution. This constitution provided for universal manhood suffrage (with certain qualifications); and it was to be adopted by vote of the people at elections at which a similarly expansive franchise obtained. This new scheme of government was ratified at the polls and declared effective by the convention, but the government elected and organized under it, with Dorr at its head, never came to power. The charter government denied the validity of the convention, the constitution and its government and, after an insignificant skirmish, routed Dorr and his followers. It meanwhile provided for the calling of its own convention, which drafted a constitution that went peacefully into effect in 1843.25
244
Luther v. Borden was a trespass action brought by one of Dorr's supporters in a United States Circuit Court to recover damages for the breaking and entering of his house. The defendants justified under military orders pursuant to martial law declared by the charter government, and plaintiff, by his reply, joined issue on the legality of the charter government subsequent to the adoption of the Dorr constitution. Evidence offered by the plaintiff tending to establish that the Dorr government was the rightful government of Rhode Island was rejected by the Circuit Court; the court charged the jury that the charter government was lawful; and on a verdict for defendants, plaintiff brought a writ of error to this Court.
245
The Court, through Mr. Chief Justice Taney, affirmed. After noting that the issue of the charter government's legality had been resolved in that government's favor by the state courts of Rhode Island—that the state courts, deeming the matter a political one unfit for judicial determination, had declined to entertain attacks upon the existence and authority of the charter government the Chief Justice held that the courts of the United States must follow those of the State in this regard. Id., at 39—40. It was recognized that the compulsion to follow state law would not apply in a federal court in the face of a superior command found in the Federal Constitution, ibid., but no such command was found. The Constitution, the Court said—referring to the Guarantee Clause of the Fourth Article—'* * * as far as it has provided for an emergency of this kind, and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department.' Id., at 42.
246
'Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.' Ibid.26
247
In determining this issue non-justiciable, the Court was sensitive to the same considerations to which its later decisions have given the varied applications already discussed. It adverted to the delicacy of judicial intervention into the very structure of government.27 It acknowledged that tradition had long entrusted questions of this nature to non-judicial processes,28 and that judicial processes were unsuited to their decision.29 The absence of guiding standards for judgment was critical, for the question whether the Dorr constitution had been rightfully adopted depended, in part, upon the extent of the franchise to be recognized—the very point of contention over which rebellion had been fought.
248
'* * * (I)f the Circuit Court had entered upon this inquiry, by what rule could it have determined the qualification of voters upon the adoption or rejection of the proposed constitution, unless there was some previous law of the State to guide it? It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision.' Id., at 41.
249
Mr. Justice Woodbury (who dissented with respect to the effect of martial law) agreed with the Court regarding the inappropriateness of judicial inquiry into the issues:
250
'But, fortunately for our freedom from political excitements in judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representatives, either in the State or general government. These questions relate to matters not to be settled on strict legal principles. They are adjusted rather by inclination,—or prejudice or compromise, often. Some of them succeed or are defeated even by public policy alone, or mere naked power, rather than intrinsic right. * * *
251
'Another evil, alarming and little foreseen, involved in regarding these as questions for the final arbitrament of judges would be, that in such an event all political privileges and rights would, in a dispute among the people, depend on our decision finally. * * * (D)isputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves, and popular will, * * * if the people, in the distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies, when not selected by nor, frequently, amenable to them, nor at liberty to follow such various considerations in their judgments as belong to mere political questions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way—slowly, but surely—a new sovereign power in the republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times * * *.' Id., at 51—53.30
III.
252
The present case involves all of the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke the Fourteenth Amendment rather than Art. IV, § 4, where, in fact, the gist of their complaint is the same—unless it can be found that the Fourteenth Amendment speaks with greater particularity to their situation. We have been admonished to avoid 'the tyranny of labels.' Snyder v. Massachusetts, 291 U.S. 97, 114, 54 S.Ct. 330, 335, 78 L.Ed. 674. Art. IV, § 4, is not committed by express constitutional terms to Congress. It is the nature of the controversies arising under it, nothing else, which has made it judicially unenforceable. Of course, if a controversy falls within judicial power, it depends 'on how he (the plaintiff) casts his action,' Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 662, 81 S.Ct. 1303, 1307, 6 L.Ed.2d 584, whether he brings himself within a jurisdictional statute. But where judicial competence is wanting, it cannot be created by invoking one clause of the Constitution rather than another. When what was essentially a Guarantee Clause claim was sought to be laid, as well, under the Equal Protection Clause in Pacific States Telephone & Telegraph Co. v. Oregon, supra, the Court had no difficulty in 'dispelling any mere confusion resulting from forms of expression, and considering the substance of things * * *.' 223 U.S., at 140, 32 S.Ct. at 227, 56 L.Ed. 377.
253
Here appellants attack 'the State as a State,' precisely as it was perceived to be attacked in the Pacific States case, id., at 150, 32 S.Ct. at 231. Their complaint is that the basis of representation of the Tennessee Legislature hurts them. They assert that 'a minority now rules in Tennessee,' that the apportionment statute results in a 'distortion of the constitutional system,' that the General Assembly is no longer 'a body representative of the people of the State of Tennessee,' all 'contrary to the basic principle of representative government * * *.' Accepting appellants' own formulation of the issue, one can know this handsaw from a hawk. Such a claim would be non-justiciable not merely under Art. IV, § 4, but under any clause of the Constitution, by virtue of the very fact that a federal court is not a forum for political debate. Massachusetts v. Mellon, supra.
254
But appellants, of course, do not rest on this claim simpliciter. In invoking the Equal Protection Clause, they assert that the distortion of representative government complained of is produced by systematic discrimination against them, by way of 'a debasement of their votes * * *.' Does this characterization, with due regard for the facts from which it is derived, add anything to appellants' case?31
255
At first blush, this charge of discrimination based on legislative underrepresentation is given the appearance of a more private, less impersonal claim, than the assertion that the frame of government is askew. Appellants appear as representatives of a class that is prejudiced as a class, in contradistinction to the polity in its entirety. However, the discrimination relied on is the deprivation of what appellants conceive to be their proportionate share of political influence. This, of course, is the practical effect of any allocation of power within the institutions of government. Hardly any distribution of political authority that could be assailed as rendering government nonrepublican would fail similarly to operate to the prejudice of some groups, and to the advantage of others, within the body politic. It would be ingenuous not to see, or consciously blind to deny, that the real battle over the initiative and referendum, or over a delegation of power to local rather than state-wide authority, is the battle between forces whose influence is disparate among the various organs of government to whom power may be given. No shift of power but works a corresponding shift in political influence among the groups composing a society.
256
What, then, is this question of legislative apportionment? Appellants invoke the right to vote and to have their votes counted.32 But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful—in short, that Tennessee has adopted a basis of representation with which they are dissatisfied. Talk of 'debasement' or 'dilution' is circular talk. One cannot speak of 'debasement' or 'dilution' of the value of a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually asked of the Court in this case is to choose among competing bases of representation ultimately, really, among competing theories of political philosophy—in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union.
257
In such a matter, abstract analogies which ignore the facts of history deal in unrealities; they betray reason. This is not a case in which a State has, through a device however oblique and sophisticated, denied Negroes or Jews or redheaded persons a vote, or given them only a third or a sixth of a vote. That was Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. What Tennessee illustrates is an old and still widespread method of representation—representation by local geographical division, only in part respective of population—in preference to others, others, forsooth, more appealing. Appellants contest this choice and seek to make this Court the arbiter of the disagreement. They would make the Equal Protection Clause the charter of adjudication, asserting that the equality which it guarantees comports, if not the assurance of equal weight to every voter's vote, at least the basic conception that representation ought to be proportionate to population, a standard by reference to which the reasonableness of apportionment plans may be judged.
258
To find such a political conception legally enforceable in the broad and unspecific guarantee of equal protection is to rewrite the Constitution. See Luther v. Borden, supra. Certainly, 'equal protection' is no more secure a foundation for judicial judgment of the permissibility of varying forms of representative government than is 'Republican Form.' Indeed since 'equal protection of the laws' can only mean an equality of persons standing in the same relation to whatever governmental action is challenged, the determination whether treatment is equal presupposes a determination concerning the nature of the relationship. This, with respect to apportionment, means an inquiry into the theoretic base of representation in an acceptably republican state. For a court could not determine the equal-protection issue without in fact first determining the Republican-Form issue, simply because what is reasonable for equal-protection purposes will depend upon what frame of government, basically, is allowed. To divorce 'equal protection' from 'Republican Form' is to talk about half a question.
259
The notion that representation proportioned to the geographic spread of population is so universally accepted as a necessary element of equality between man and man that it must be taken to be the standard of a political equality preserved by the Fourteenth Amendment—that it is, in appellants' words 'the basic principle of representative government'—is, to put it bluntly, not true. However desirable and however desired by some among the great political thinkers and framers of our government, it has never been generally practiced, today or in the past. It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today. Unless judges, the judges of this Court, are to make their private views of political wisdom the measure of the Constitution—views which in all honesty cannot but give the appearance, if not reflect the reality, of involvement with the business of partisan politics so inescapably a part of apportionment controversies—the Fourteenth Amendment, 'itself a historical product,' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107, provides no guide for judicial oversight of the representation problem.
260
1. Great Britain. Writing in 1958, Professor W. J. M. Mackenzie aptly summarized the British history of the principle of representation proportioned to population: "Equal electoral districts' formed part of the programme of radical reform in England in the 1830s, the only part of that programme which has not been realised.'33 Until the late nineteenth century, the sole base of representation (with certain exceptions not now relevant) was the local geographical unit: each county or borough returned its fixed number of members, usually two for the English units, regardless of population.34 Prior to the Reform Act of 1832, this system was marked by the almost total disfranchisement of the populous northern industrial centers, which had grown to significant size at the advent of the Industrial Revolution and had not been granted borough representation, and by the existence of the rotten borough, playing its substantial part in the Crown's struggle for continued control of the Commons.35 In 1831, ten southernmost English counties, numbering three and a quarter million people, had two hundred and thirty-five parliamentary representatives, while the six northernmost counties, with more than three and a half million people, had sixty-eight.36 It was said that one hundred and eighty persons appointed three hundred and fifty members in the Commons.37 Less than a half century earlier, Madison in the Federalist had remarked that half the House was returned by less than six thousand of the eight million people of England and Scotland.38
261
The Act of 1832, the product of a fierce partisan political struggle and the occasion of charges of gerrymandering not without foundation,39 effected eradication of only the most extreme numerical inequalities of the unreformed system. It did not adopt the principle of representation based on population, but merely disfranchised certain among the rotten borough and enfranchised most of the urban centers—still quite without regard to their relative numbers.40 In the wake of the Act there remained substantial electoral inequality: the boroughs of Cornwall were represented sixteen times as weightily, judged by population, as the county's eastern division; the average ratio of seats to population in ten agricultural counties was four and a half times that in ten manufacturing divisions; Honiton, with about three thousand inhabitants, was equally represented with Liverpool, which had four hundred thousand.41 In 1866 apportionment by population began to be advocated generally in the House, but was not made the basis of the redistribution of 1867, although the act of that year did apportion representation more evenly, gauged by the population standard.42 Population shifts increased the surviving inequalities; by 1884 the representation ratio in many small boroughs was more than twenty-two times that of Birmingham or Manchester, forty-to-one disparities could be found elsewhere, and, in sum, in the 1870's and 1880's, a fourth of the electorate returned two-thirds of the members of the House.43
262
The first systematic English attempt to distribute seats by population was the Redistribution Act of 1885.44 The statute still left ratios of inequality of as much as seven to one,45 which had increased to fifteen to one by 1912.46 In 1918 Parliament again responded to 'shockingly bad' conditions of inequality,47 and to partisan political inspiration,48 by redistribution.49 In 1944, redistribution was put on a periodic footing by the House of Commons (Redistribution of Seats) Act of that year,50 which committed a continuing primary responsibility for reapportioning the Commons to administrative agencies (Boundary Commissions for England, Scotland, Wales and Northern Ireland, respectively).51 The Commissions, having regard to certain rules prescribed for their guidance, are to prepare at designated intervals reports for the Home Secretary's submission to Parliament, along with the draft of an Order in Council to give effect to the Commissions' recommendations. The districting rules adopt the basic principle of representation by population, although the principle is significantly modified by directions to respect local geographic boundaries as far as practicable, and by discretion to take account of special geographical conditions, including the size, shape and accessibility of constituencies. Under the original 1944 Act, the rules provided that (subject to the exercise of the discretion respecting special geographical conditions and to regard for the total size of the House of Commons as prescribed by the Act) so far as practicable, the single-member districts should not deviate more than twenty-five percent from the electoral quota (population divided by number of constituencies). However, apparently at the recommendation of the Boundary Commission for England, the twenty-five percent standard was eliminated as too restrictive in 1947, and replaced by the flexible provision that constituencies are to be as near the electoral quota as practicable, a rule which is expressly subordinated both to the consideration of special geographic conditions and to that of preserving local boundaries.52 Free of the twenty-five percent rule, the Commissions drew up plans of distribution in which inequalities among the districts run, in ordinary cases, as high as two to one and, in the case of a few extraordinary constituencies, three to one.53 The action of the Boundary Commission for England was twice challenged in the courts in 1954—the claim being that the Commission had violated statutory rules prescribing the standards for its judgment—and in both cases the Judges declined to intervene. In Hammersmith Borough Council v. Boundary Commission for England,54 Harman, J., was of opinion that the nature of the controversy and the scheme of the Acts made the matter inappropriate for judicial interference, and in Harper v. Home Secretary,55 the Court of Appeal, per Evershed, M.R., quoting Harman, J., with approval, adverting to the wide range of discretion entrusted to the Commission under the Acts, and remarking the delicate character of the parliamentary issues in which it was sought to engage the court, reached the same conclusion.56
263
The House of Commons (Redistribution of Seats) Act, 1958,57 made two further amendments to the law. Responsive to the recommendation of the Boundary Commission for England,58 the interval permitted between Commission reports was more than doubled, to a new maximum of fifteen years.59 And at the suggestion of the same Commission that 'It would ease the future labours of the Commission and remove much local irritation if Rule 5 (requiring that the electorate of each constituency be as near the electoral quota as practicable) were to be so amended as to allow us to make recommendations preserving the status quo in any area where such a course appeared to be desirable and not inconsistent with the broad intention of the Rules,'60 the Commissions were directed to consider the inconveniences attendant upon the alteration of constituencies, and the local ties which such alteration might break. The Home Secretary's view of this amendment was that it worked to erect 'a presumption against making changes unless there is a very strong case for them.'61
264
2. The Colonies and the Union. For the guiding political theorists of the Revolutionary generation, the English system of representation, in its most salient aspects of numerical inequality, was a model to be avoided, not followed.62 Nevertheless, the basic English principle of apportioning representatives among the local governmental entities, towns or counties, rather than among units of approximately equal population, had early taken root in the colonies.63 In some, as in Massachusetts and Rhode Island, numbers of electors were taken into account, in a rough fashion, by allotting increasing fixed quotas of representatives to several towns or classes of towns graduated by population, but in most of the colonies delegates were allowed to the local units without respect to numbers.64 This resulted in grossly unequal electoral units.65 The representation ratio in one North Carolina county was more than eight times that in another.66 Moreover, American rotten boroughs had appeared,67 and apportionment was made an instrument first in the political struggles between the King or the royal governors and the colonial legislatures,68 and, later, between the older tidewater regions in the colonies and the growing interior.69 Madison in the Philadelphia Convention adverted to the 'inequality of the Representation in the Legislatures of particular States, * * *'70 arguing that it was necessary to confer on Congress the power ultimately to regulate the times, places and manner of selecting Representatives,71 in order to forestall the overrepresented counties' securing themselves a similar overrepresentation in the national councils. The example of South Carolina, where Charleston's overrepresentation was a continuing bone of contention between the tidewater and the back country, was cited by Madison in the Virginia Convention and by King in the Massachusetts Convention, in support of the same power, and King also spoke of the extreme numerical inequality arising from Connecticut's town-representation system.72
265
Such inequalities survived the constitutional period. The United States Constitution itself did not largely adopt the principle of numbers. Apportionment of the national legislature among the States was one of the most difficult problems for the Convention;73 its solution—involving State representation in the Senate74 and the three-fifths compromise in the House75—left neither chamber apportioned proportionately to population. Within the States, electoral power continued to be allotted to favor the tidewater.76 Jefferson, in his Notes on Virginia, recorded the 'very unequal' representation there: individual counties differing in population by a ratio of more than seventeen to one elected the same number of representatives, and those nineteen thousand of Virginia's fifty thousand men who lived between the falls of the rivers and the seacoast returned half the State's senators and almost half its delegates.77 In South Carolina in 1790, the three lower districts, with a white population of less than twenty-nine thousand elected twenty senators and seventy assembly members; while in the uplands more than one hundred and eleven thousand white persons elected seventeen senators and fifty-four assemblymen.78
266
In the early nineteenth century, the demands of the interior became more insistent. The apportionment quarrel in Virginia was a major factor in precipitating the calling of a constitutional convention in 1829. Bitter animosities racked the convention, threatening the State with disunion. At last a compromise which gave the three hundred and twenty thousand people of the west thirteen senators, as against the nineteen senators returned by the three hundred sixty-three thousand people of the east, commanded agreement. It was adopted at the polls but left the western counties so dissatisfied that there were threats of revolt and realignment with the State of Maryland.79
267
Maryland, however, had her own numerical disproportions. In 1820, one representative vote in Calvert County was worth five in Frederick County, and almost two hundred thousand people were represented by eighteen members, while fifty thousand others elected twenty.80 This was the result of the county-representation system of allotment. And, except for Massachusetts which, after a long struggle, did adopt representation by population at the mid-century, a similar town-representation principle continued to prevail in various forms throughout New England, with all its attendant, often gross inequalities.81
268
3. The States at the time of ratification of the Fourteenth Amendment, and those later admitted. The several state conventions throughout the first half of the nineteenth century were the scenes of fierce sectional and party strifes respecting the geographic allocation of representation.82 Their product was a wide variety of apportionment methods which recognized the element of population in differing ways and degrees. Particularly pertinent to appraisal of the contention that the Fourteenth Amendment embodied a standard limiting the freedom of the States with regard to the principles and bases of local legislative apportionment is an examination of the apportionment provisions of the thirty-three States which ratified the Amendment between 1866 and 1870, at their respective times of ratification. These may be considered in two groups: (A) the ratifying States other than the ten Southern States whose constitutions, at the time of ratification or shortly thereafter, were the work of the Reconstruction Act conventions;83 and (B) the ten Reconstruction-Act States. All thirty-three are significant, because they demonstrate how unfounded is the assumption that the ratifying States could have agreed on a standard apportionment theory or practice, and how baseless the suggestion that by voting for the Equal Protection Clause they sought to establish a test mold for apportionment which—if appellants' argument is sound—struck down sub silentio not a few of their own state constitutional provisions. But the constitutions of the ten Reconstruction-Act States have an added importance, for it is scarcely to be thought that the Congress which was so solicitous for the adoption of the Fourteenth Amendment as to make the readmission of the late rebel States to Congress turn on their respective ratifications of it, would have approved constitutions which—again, under appellants' theory contemporaneously offended the Amendment.
269
A. Of the twenty-three ratifying States of the first group, seven or eight had constitutions which demanded or allowed apportionment of both houses on the basis of population,84 unqualifiedly or with only qualifications respecting the preservation of local boundaries.85 Three more apportioned on what was essentially a population base, but provided that in one house counties having a specified fraction of a ratio—a moiety or two-thirds—should have a representative.86 Since each of these three States limited the size of their chambers, the fractional rule could operate—and, at least in Michigan, has in fact operated87—to produce substantial numerical inequalities in favor of the sparsely populated counties.88 Iowa favored her small counties by the rule that no more than four counties might be combined in a representative district,89 and New York and Kansas compromised population and county-representation principles by assuring every county, regardless of the number of its inhabitants, at least one seat in their respective Houses.90
270
Ohio and Maine recognized the factor of numbers by a different device. The former gave a House representative to each county having half a ratio, two representatives for a ratio and three-quarters, three representatives for three ratios, and a single additional representative for each additional ratio.91 The latter, after apportioning among counties on a population base, gave each town of fifteen hundred inhabitants one representative, each town of three thousand, seven hundred and fifty inhabitants two representatives, and so on in increasing intervals to twenty-six thousand, two hundred and fifty inhabitants—towns of that size or larger receiving the maximum permitted number of representatives: seven.92 The departure from numerical equality under these systems is apparent: in Maine, assuming the incidence of towns in all categories, representative ratios would differ by factors of two and a half to one, at a minimum. Similarly, Missouri gave each of its counties, however small, one representative, two representatives for three ratios, three representatives for six ratios, and one additional representative for each three ratios above six.93 New Hampshire allotted a representative to each town of one hundred and fifty ratable male polls of voting age and one more representative for each increment of three hundred above that figure;94 its Senate was not apportioned by population but among districts based on the proportion of direct taxes paid.95 In Pennsylvania, the basis of apportionment in both houses was taxable inhabitants; and in the House every county of at least thirty-five hundred taxables had a representative, nor could more than three counties be joined in forming a representative district; while in the Senate no city or county could have more than four of the State's twenty-five to thirty-three senators.96
271
Finally, four States apportioned at least one House with no regard whatever to population. In Connecticut97 and Vermont98 representation in the House was on a town basis; Rhode Island gave one senator to each of its towns or cities,99 and New Jersey, one to each of its counties.100 Nor, in any of these States, was the other House apportioned on a strict principle of equal numbers: Connecticut gave each of its counties a minimum of two senators101 and Vermont, one;102 New Jersey assured each county a representative;103 and in Rhode Island, which gave at least one representative to each town or city, no town or city could have more than one-sixth of the total number in the House.104
272
B. Among the ten late Confederate States affected by the Reconstruction Acts, in only four did it appear that apportionment of both state legislative houses would or might be based strictly on population.105 In North Carolina,106 South Carolina,107 Louisiana,108 and Alabama,109 each county (in the case of Louisiana, each parish) was assured at least one seat in the lower House irrespective of numbers—a distribution which exhausted, respectively, on the basis of the number of then-existing counties, three-quarters, one-quarter, two-fifths and three-fifths of the maximum possible number of representatives, before a single seat was available for assignment on a population basis; and in South Carolina, moreover, the Senate was composed of one member elected from each county, except that Charleston sent two.110 In Florida's House, each county had one seat guaranteed and an additional seat for every thousand registered voters up to a maximum of four representatives;111 while Georgia, whose Senate seats were distributed among forty-four single-member districts each composed of three contiguous counties,112 assigned representation in its House as follows: three seats to each of the six most populous counties, two to each of the thirty-one next most populous, one to each of the remaining ninety-five.113 As might be expected, the one-representative-per-county minimum pattern has proved incompatible with numerical equality,114 and Georgia's county-clustering system has produced representative-ratio disparities, between the largest and smallest counties, of more than sixty to one.115
273
C. The constitutions116 of the thirteen States which Congress admitted to the Union after the ratification of the Fourteenth Amendment showed a similar pattern. Six of them required or permitted apportionment of both Houses by population, subject only to qualifications concerning local boundaries.117 Wyoming, apportioning by population, guaranteed to each of its counties at least one seat in each House,118 and Idaho, which prescribed (after the first legislative session) that apportionment should be 'as may be provided by law,' gave each county at least one representative.119 In Oklahoma, House members were apportioned among counties so as to give one seat for half a ratio, two for a ratio and three-quarters, and one for each additional ratio up to a maximum of seven representatives per county.120 Montana required reapportionment of its House on the basis of periodic enumerations according to ratios to be fixed by law121 but its counties were represented as counties in the Senate, each county having one senator.122 Alaska123 and Hawaii124 each apportioned a number of senators among constitutionally fixed districts; their respective Houses were to be periodically reapportioned by population, subject to a moiety rule in Alaska125 and to Hawaii's guarantee of one representative to each of four constitutionally designated areas.126 The Arizona Constitution assigned representation to each county in each house, giving one or two senators and from one to seven representatives to each, and making no provision for reapportionment.127
274
4. Contemporary apportionment. Detailed recent studies are available to describe the present-day constitutional and statutory status of apportionment in the fifty States.128 They demonstrate a decided twentieth-century trend away from population as the exclusive base of representation. Today, only a dozen state constitutions provide for periodic legislative reapportionment of both houses by a substantially unqualified application of the population standard,129 and only about a dozen more prescribe such reapportionment for even a single chamber. 'Specific provision for county representation in at least one house of the state legislature has been increasingly adopted since the end of the 19th century. * * *'130 More than twenty States now guarantee each county at least one seat in one of their houses regardless of population, and in nine others county or town units are given equal representation in one legislative branch, whatever the number of each unit's inhabitants. Of course, numerically considered, 'These provisions invariably result in over-representation of the least populated areas. * * *'131 And in an effort to curb and political dominance of metropolitan regions, at least ten States now limit the maximum entitlement of any single county (or, in some cases, city) in one legislative house—another source of substantial numerical disproportion.132
275
Moreover, it is common knowledge that the legislatures have not kept reapportionment up to date, even where state constitutions in terms require it.133 In particular, the pattern of according greater per capita representation to rural, relatively sparsely populated areas—the same pattern which finds expression in various state constitutional provisions,134 and which has been given effect in England and elsewhere135—has, in some of the States, been made the law by legislative inaction in the face of population shifts.136 Throughout the country, urban and suburban areas tend to be given higher representation ratios than do rural areas.137
276
The stark fact is that if among the numerous widely varying principles and practices that control state legislative apportionment today there is any generally prevailing feature, that feature is geographic inequality in relation to the population standard.138 Examples could be endlessly multiplied. In New Jersey, counties of thirty-five thousand and of more than nine hundred and five thousand inhabitants respectively each have a single senator.139 Representative districts in Minnesota range from 7,290 inhabitants to 107,246 inhabitants.140 Rations of senatorial representation in California vary as much as two hundred and ninety-seven to one.141 In Oklahoma, the range is ten to one for House constituencies and roughly sixteen to one for Senate constituencies.142 Colebrook, Connecticut—population 592—elects two House representatives; Hartford—population 177,397—also elects two.143 The first, third and fifth of these examples are the products of constitutional provisions which subordinate population to regional considerations in apportionment; the second is the result of legislative inaction; the fourth derives from both constitutional and legislative sources. A survey made in 1955, in sum, reveals that less than thirty percent of the population inhabit districts sufficient to elect a House majority in thirteen States and a Senate majority in nineteen States.144 These figures show more than individual variations from a generally accepted standard of electoral equality. They show that there is not—as there has never been—a standard by which the place of equality as a factor in apportionment can be measured.
277
Manifestly, the Equal Protection Clause supplies no clearer guide for judicial examination of apportionment methods than would the Guarantee Clause itself. Apportionment, by its character, is a subject of extraordinary complexity, involving—even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised—considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others.145 Legislative responses throughout the country to the reapportionment demands of the 1960 Census have glaringly confirmed that these are not factors that lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate by legal training or experience or native wit. And this is the more so true because in every strand of this complicated, intricate web of values meet the contending forces of partisan politics.146 The practical significance of apportionment is that the next election results may differ because of it. Apportionment battles are overwhelmingly party or intra-party contests.147 It will add a virulent source of friction and tension in federal-state relations to embroil the federal judiciary in them.148
IV.
278
Appellants, however, contend that the federal courts may provide the standard which the Fourteenth Amendment lacks by reference to the provisions of the constitution of Tennessee. The argument is that although the same or greater disparities of electoral strength may be suffered to exist immune from federal judicial review in States where they result from apportionment legislation consistent with state constitutions, the Tennessee Legislature may not abridge the rights which, on its face, its own constitution appears to give, without by that act denying equal protection of the laws. It is said that the law of Tennessee, as expressed by the words of its written constitution, has made the basic choice among policies in favor of representation proportioned to population, and that it is no longer open to the State to allot its voting power on other principles.
279
This reasoning does not bear analysis. Like claims invoking state constitutional requirement have been rejected here and for good reason. It is settled that whatever federal consequences may derive from a discrimination worked by a state statute must be the same as if the same discrimination were written into the State's fundamental law. Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254. And see Castillo v. McConnico, 168 U.S. 674, 18 S.Ct. 229, 42 L.Ed. 622; Coulter v. Louisville & N.R. Co., 196 U.S. 599, 608—609, 25 S.Ct. 342, 344 345, 49 L.Ed. 615; Owensboro Waterworks Co. v. Owensboro, 200 U.S. 38, 26 S.Ct. 249, 50 L.Ed. 361; Hebert v. Louisiana, 272 U.S. 312, 316—317, 47 S.Ct. 103, 104, 71 L.Ed. 270; Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497. Appellants complain of a practice which, by their own allegations, has been the law of Tennessee for sixty years. They allege that the Apportionment Act of 1901 created unequal districts when passed and still maintains unequal districts. They allege that the Legislature has since 1901 purposefully retained unequal districts. And the Supreme Court of Tennessee has refused to invalidate the law establishing these unequal districts. Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40; appeal dismissed here in 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157. In these circumstances, what was said in the Browning case, supra, at 369, 60 S.Ct. at 972, clearly governs this case:
280
'* * * Here, according to petitioner's own claim, 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. The equal protection clause did not write an empty formalism into the Constitution. 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. * * * (T) he equal protection clause is not a command of candor. * * *' Tennessee's law and its policy respecting apportionment are what 60 years of practice show them to be, not what appellants cull from the unenforced and, according to its own judiciary, unenforceable words of its Constitution. The statute comes here on the same footing, therefore, as would the apportionment laws of New Jersey, California or Connecticut,149 and is unaffected by its supposed repugnance to the state constitutional language on which appellants rely.150
281
In another aspect, however, the Kidd v. McCanless case, supra, introduces a factor peculiar to this litigation, which only emphasizes the duty of declining the exercise of federal judicial jurisdiction. In all of the apportionment cases which have come before the Court, a consideration which has been weighty in determining their non-justiciability has been the difficulty or impossibility of devising effective judicial remedies in this class of case. An injunction restraining a general election unless the legislature reapportions would paralyze the critical centers of a State's political system and threaten political dislocation whose consequences are not foreseeable. A declaration devoid of implied compulsion of injunctive or other relief would be an idle threat.151 Surely a Federal District Court could not itself remap the State: the same complexities which impede effective judicial review of apportionment a fortiori make impossible a court's consideration of these imponderables as an original matter. And the choice of elections at large as opposed to elections by district, however unequal the districts, is a matter of sweeping political judgment having enormous political implications, the nature and reach of which are certainly beyond the informed understanding of, and capacity for appraisal by, courts.
282
In Tennessee, moreover, the McCanless case has closed off several among even these unsatisfactory and dangerous modes of relief. That case was a suit in the state courts attacking the 1901 Reapportionment Act and seeking a declaration and an injunction of the Act's enforcement or, alternatively, a writ of mandamus compelling state election officials to hold the elections at large, or, again alternatively, a decree of the court reapportioning the State. The Chancellor denied all coercive relief, but entertained the suit for the purpose of rendering a declaratory judgment. It was his view that despite an invalidation of the statute under which the present legislature was elected, that body would continue to possess de facto authority to reapportion, and that therefore the maintaining of the suit did not threaten the disruption of the government. The Tennessee Supreme Court agreed that no coercive relief could be granted; in particular, it said, 'There is no provision of law for election of our General Assembly by an election at large over the State.' 200 Tenn., at 277, 292 S.W.2d, at 42. Thus, a legislature elected at large would not be the legally constituted legislative authority of the State. The court reversed, however, the Chancellor's determination to give declaratory relief, holding that the ground of demurrer which asserted that a striking down of the statute would disrupt the orderly process of government should have been sustained:
283
'(4) It seems obvious and we therefore hold that if the Act of 1901 is to be declared unconstitutional, then the de facto doctrine cannot be applied to maintain the present members of the General Assembly in office. If the Chancellor is correct in holding that this statute has expired by the passage of the decade following its enactment then for the same reason all prior apportionment acts have expired by a like lapse of time and are nonexistent. Therefore we would not only not have any existing members of the General Assembly but we would have no apportionment act whatever under which a new election could be held for the election of members to the General Assembly.
284
'The ultimate result of holding this Act unconstitutional by reason of the lapse of time would be to deprive us of the present Legislature and the means of electing a new one and ultimately bring about the destruction of the State itself.' 200 Tenn., at 281—282, 292 S.W.2d, at 44.
285
A federal court enforcing the Federal Constitution is not, to be sure, bound by the remedial doctrines of the state courts. But it must consider as pertinent to the propriety or impropriety of exercising its jurisdiction those state-law effects of its decree which it cannot itself control. A federal court cannot provide the authority requisite to make a legislature the proper governing body of the State of Tennessee. And it cannot be doubted that the striking down of the statute here challenged on equal protection grounds, no less than on grounds of failure to reapportion decennially, would deprive the State of all valid apportionment legislation and—under the ruling in McCanless—deprive the State of an effective law-based legislative branch. Just such considerations, among others here present, were determinative in Luther v. Borden and the Oregon initiative cases.152
286
Although the District Court had jurisdiction in the very restricted sense of power to determine whether it could adjudicate the claim, the case is of that class of political controversy which, by the nature of its subject, is unfit for federal judicial action. The judgment of the District Court, in dismissing the complaint for failure to state a claim on which relief can be granted, should therefore be affirmed.
287
Dissenting opinion of Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins.
288
The dissenting opinion of Mr. Justice FRANKFURTER, in which I join, demonstrates the abrupt departure the majority makes from judicial history by putting the federal courts into this area of state concerns—an area which, in this instance, the Tennessee state courts themselves have refused to enter.
289
It does not detract from his opinion to say that the panorama of judicial history it unfolds, though evincing a steadfast underlying principle of keeping the federal courts out of these domains, has a tendency, because of variants in expression, to becloud analysis in a given case. With due respect to the majority, I think that has happened here.
290
Once one cuts through the thicket of discussion devoted to 'jurisdiction,' 'standing,' 'justiciability,' and 'political question,' there emerges a straightforward issue which, in my view, is determinative of this case. Does the complaint disclose a violation of a federal constitutional right, in other words, a claim over which a United States District Court would have jurisdiction under 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3) and 42 U.S.C. § 1983, 42 U.S.C.A. § 1983? The majority opinion does not actually discuss this basic question, but, as one concurring Justice observes, seems to decide it 'sub silentio.' 369 U.S., p. 261, 82 S.Ct., p. 733. However, in my opinion, appellants' allegations, accepting all of them as true, do not, parsed down or as a whole, show an infringement by Tennessee of any rights assured by the Fourteenth Amendment. Accordingly, I believe the complaint should have been dismissed for 'failure to state a claim upon which relief can be granted.' Fed.Rules Civ.Proc., Rule 12(b)(6), 28 U.S.C.A.
291
It is at once essential to recognize this case for what it is. The issue here relates not to a method of state electoral apportionment by which seats in the federal House of Representatives are allocated, but solely to the right of a State to fix the basis of representation in its own legislature. Until it is first decided to what extent that right is limited by the Federal Constitution, and whether what Tennessee has done or failed to do in this instance runs afoul of any such limitation, we need not reach the issues of 'justiciability' or 'political question' or any of the other considerations which in such cases as Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, led the Court to decline to adjudicate a challenge to a state apportionment affecting seats in the federal House of Representatives, in the absence of a controlling Act of Congress. See also Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131.
292
The appellants' claim in this case ultimately rests entirely on the Equal Protection Clause of the Fourteenth Amendment. It is asserted that Tennessee has violated the Equal Protection Clause by maintaining in effect a system of apportionment that grossly favors in legislative representation the rural sections of the State as against its urban communities. Stripped to its essentials the complaint purports to set forth three constitutional claims of varying breadth:
293
(1) The Equal Protection Clause requires that each vote cast in state legislative elections be given approximately equal weight.
294
(2) Short of this, the existing apportionment of state legislators is so unreasonable as to amount to an arbitrary and capricious act of classification on the part of the Tennessee Legislature, which is offensive to the Equal Protection Clause.
295
(3) In any event, the existing apportionment is rendered invalid under the Fourteenth Amendment because it flies in the face of the Tennessee Constitution. For reasons given in Mr. Justice FRANKFURTER'S opinion, 369 U.S., pp. 325—327, 82 S.Ct., pp. 768—769, the last of these propositions is manifestly untenable, and need not be dealt with further. I turn to the other two.
I.
296
I can find nothing in the Equal Protection Clause or elsewhere in the Federal Constitution which expressly or impliedly supports the view that state legislatures must be so structured as to reflect with approximate equality the voice of every voter. Not only is that proposition refuted by history, as shown by my Brother FRANKFURTER, but it strikes deep into the heart of our federal system. Its acceptance would require us to turn our backs on the regard which this Court has always shown for the judgment of state legislatures and courts on matters of basically local concern.
297
In the last analysis, what lies at the core of this controversy is a difference of opinion as to the function of representative government. It is surely beyond argument that those who have the responsibility for devising a system of representation may permissibly consider that factors other than bare numbers should be taken into account. The existence of the United States Senate is proof enough of that. To consider that we may ignore the Tennessee Legislature's judgment in this instance because that body was the product of an asymmetrical electoral apportionment would in effect be to assume the very conclusion here disputed. Hence we must accept the present form of the Tennessee Legislature as the embodiment of the State's choice, or, more realistically, its compromise, between competing political philosophies. The federal courts have not been empowered by the Equal Protection Clause to judge whether this resolution of the State's internal political conflict is desirable or undesirable, wise or unwise.
298
With respect to state tax statutes and regulatory measures, for example, it has been said that the 'day is gone when this Court uses the * * * Fourteenth Amendment to strike down state laws * * * because they may be unwise, improvident, or out of harmony with a particular school of thought.' Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563. I would think it all the more compelling for us to follow this principle of self-restraint when what is involved is the freedom of a State to deal with so intimate a concern as the structure of its own legislative branch. The Federal Constitution imposes no limitation on the form which a state government may take other than generally committing to the United States the duty to guarantee to every State 'a Republican Form of Government.' And, as my Brother FRANKFURTER so conclusively proves (ante, 369 U.S., pp. 308—317, 82 S.Ct., pp. 759—764), no intention to fix immutably the means of selecting representatives for state governments could have been in the minds of either the founders or the draftsmen of the Fourteenth Amendment.
299
In short, there is nothing in the Federal Constitution to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people. I would have thought this proposition settled by MacDougall v. Green, 335 U.S. 281, at p. 283, 69 S.Ct. 1, at p. 2, 93 L.Ed. 3, in which the Court observed that to 'assume that political power is a function exclusively of numbers is to disregard the practicalities of government,' and reaffirmed by South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834. A State's choice to distribute electoral strength among geographical units, rather than according to a census of population, is certainly no less a rational decision of policy than would be its choice to levy a tax on property rather than a tax on income. Both are legislative judgments entitled to equal respect from this Court.
II.
300
The claim that Tennessee's system of apportionment is so unreasonable as to amount to a capricious classification of voting strength stands up no better under dispassionate analysis.
301
The Court has said time and again that the Equal Protection Clause does not demand of state enactments either mathematical identity or rigid equality. E.g., Allied Stores of Ohio, Inc., v. Bowers, 358 U.S. 522, 527—528, 79 S.Ct. 437, 440, 441, 3 L.Ed.2d 480, and authorities there cited; McGowan v. State of Maryland, 366 U.S. 420, 425—426, 81 S.Ct. 1101, 1104, 1105, 6 L.Ed.2d 393. All that is prohibited is 'invidious discrimination' bearing no rational relation to any permissible policy of the State. Williamson v. Lee Optical Co., supra, 348 U.S. at 489, 75 S.Ct. 461, 99 L.Ed. 563. And in deciding whether such discrimination has been practiced by a State, it must be borne in mind that a 'statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, supra. It is not inequality alone that calls for a holding of unconstitutionality; only if the inequality is based on an impermissible standard may this Court condemn it.
302
What then is the basis for the claim made in this case that the distribution of state senators and representatives is the product of capriciousness or of some constitutionally prohibited policy? It is not that Tennessee has arranged its electoral districts with a deliberate purpose to dilute the voting strength of one race, cf. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, or that some religious group is intentionally underrepresented. Nor is it a charge that the legislature has indulged in sheer caprice by allotting representatives to each county on the basis of a throw of the dice, or of some other determinant bearing no rational relation to the question of apportionment. Rather, the claim is that the State Legislature has unreasonably retained substantially the same allocation of senators and representatives as was established by statute in 1901, refusing to recognize the great shift in the population balance between urban and rural communities that has occurred in the meantime.
303
It is further alleged that even as of 1901 the apportionment was invalid, in that it did not allocate state legislators among the counties in accordance with the formula set out in Art. II, § 5, of the Tennessee Constitution. In support of this the appellants have furnished a Table which indicates that as of 1901 six counties were overrepresented and 11 were underrepresented. But that Table in fact shows nothing in the way of significant discrepancy; in the instance of each county it is only one representative who is either lacking or added. And it is further perfectly evident that the variations are attributable to nothing more than the circumstance that the then enumeration of voters resulted in fractional remainders with respect to which the precise formula of the Tennessee Constitution was in some instances slightly disregarded. Unless such de minimis departures are to be deemed of significance, these statistics certainly provide no substantiation for the charge that the 1901 apportionment was arbitrary and capricious. Indeed, they show the contrary.
304
Thus reduced to its essentials, the charge of arbitrariness and capriciousness rests entirely on the consistent refusal of the Tennessee Legislature over the past 60 years to alter a pattern of apportionment that was reasonable when conceived.
305
A Federal District Court is asked to say that the passage of time has rendered the 1901 apportionment obsolete to the point where its continuance becomes vulnerable under the Fourteenth Amendment. But is not this matter one that involves a classic legislative judgment? Surely it lies within the province of a state legislature to conclude that an existing allocation of senators and representatives constitutes a desirable balance of geographical and demographical representation, or that in the interest of stability of government it would be best to defer for some further time the redistribution of seats in the state legislature.
306
Indeed, I would hardly think it unconstitutional if a state legislature's expressed reason for establishing or maintaining an electoral imbalance between its rural and urban population were to protect the State's agricultural interests from the sheer weight of numbers of those residing in its cities. A State may, after all, take account of the interests of its rural population in the distribution of tax burdens, e.g., American Sugar Rfg. Co. v. State of Louisiana, 179 U.S. 89, 21 S.Ct. 43, 45 L.Ed. 102, and recognition of the special problems of agricultural interests has repeatedly been reflected in federal legislation, e.g., Capper-Volstead Act, 42 Stat. 388, 7 U.S.C.A. §§ 291, 292; Agricultural Adjustment Act of 1938, 52 Stat. 31, 7 U.S.C.A. § 601 et seq. Even the exemption of agricultural activities from state criminal statutes of otherwise general application has not been deemed offensive to the Equal Protection Clause. Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124. Does the Fourteenth Amendment impose a stricter limitation upon a State's apportionment of political representatives to its central government? I think not. These are matters of local policy, on the wisdom of which the federal judiciary is neither permitted nor qualified to sit in judgment.
307
The suggestion of my Brother FRANKFURTER that courts lack standards by which to decide such cases as this, is relevant not only to the question of 'justiciability,' but also, and perhaps more fundamentally, to the determination whether any cognizable constitutional claim has been asserted in this case. Courts are unable to decide when it is that an apportionment originally valid becomes void because the factors entering into such a decision are basically matters appropriate only for legislative judgment. And so long as there exists a possible rational legislative policy for retaining an existing apportionment, such a legislative decision cannot be said to breach the bulwark against arbitrariness and caprice that the Fourteenth Amendment affords. Certainly, with all due respect, the facile arithmetical argument contained in Part II of my Brother CLARK's separate opinion (369 U.S., pp. 253—258, 82 S.Ct. pp. 729—732) provides no tenable basis for considering that there has been such a breach in this instance. (See the Appendix to this opinion.)
308
These conclusions can hardly be escaped by suggesting that capricious state action might be found were it to appear that a majority of the Tennessee legislators, in refusing to consider reapportionment, had been actuated by self-interest in perpetuating their own political offices or by other unworthy or improper motives. Since Fletcher v. Peck, 6 Cranch 87, 3 L.Ed. 162, was decided many years ago, it has repeatedly been pointed out that it is not the business of the federal courts to inquire into the personal motives of legislators. E.g., State of Arizona v. State of California, 283 U.S. 423, 455 & n. 7, 51 S.Ct. 522, 526, 75 L.Ed. 1154. The function of the federal judiciary ends in matters of this kind once it appears, as I think it does here on the undisputed facts, that the state action complained of could have rested on some rational basis. (See the Appendix to this opinion.)
309
It is my view that the majority opinion has failed to point to any recognizable constitutional claim alleged in this complaint. Indeed, it is interesting to note that my Brother STEWART is at pains to disclaim for himself, and to point out that the majority opinion does not suggest, that the Federal Constitution requires of the States any particular kind of electoral apportionment, still less that they must accord to each voter approximately equal voting strength. Concurring opinion, 369 U.S., p. 265, 82 S.Ct., pp. 736, 737. But that being so, what, may it be asked, is left of this complaint? Surely the bare allegations that the existing Tennessee apportionment is 'incorrect,' 'arbitrary,' 'obsolete' and 'unconstitutional' amounting to nothing more than legal conclusions—do not themselves save the complaint from dismissal. See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253. Nor do those allegations shift to the appellees the burden of proving the constitutionality of this state statute; as is so correctly emphasized by my Brother STEWART (369 U.S., p. 266, 82 S.Ct., p. 737), this Court has consistently held in cases arising under the Equal Protection Clause that "the burden of establishing the unconstitutionality of a statute rests on him who assails it.' Metropolitan Casualty Ins. Co. of New York v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070.' (Emphasis added.) Moreover, the appellants do not suggest that they could show at a trial anything beyond the matters previously discussed in this opinion, which add up to nothing in the way of a supportable constitutional challenge against this statute. And finally, the majority's failure to come to grips with the question whether the complaint states a claim cognizable under the Federal Constitution—an issue necessarily presented by appellees' motion to dismiss— does not of course furnish any ground for permitting this action to go to trial.
310
From a reading of the majority and concurring opinions one will not find it difficult to catch the premises that underlie this decision. The fact that the appellants have been unable to obtain political redress of their asserted grievances appears to be regarded as a matter which should lead the Court to stretch to find some basis for judicial intervention. While the Equal Protection Clause is invoked, the opinion for the Court notably eschews explaining how, consonant with past decisions, the undisputed facts in this case can be considered to show a violation of that constitutional provision. The majority seems to have accepted the argument, pressed at the bar, that if this Court merely asserts authority in this field, Tennessee and other 'malapportioning' States will quickly respond with appropriate political action, so that this Court need not be greatly concerned about the federal courts becoming further involved in these matters. At the same time the majority has wholly failed to reckon with what the future may hold in store if this optimistic prediction is not fulfilled. Thus, what the Court is doing reflects more an adventure in judicial experimentation than a solid piece of constitutional adjudication. Whether dismissal of this case should have been for want of jurisdiction or, as is suggested in Bell v. Hood, 327 U.S. 678, 682—683, 66 S.Ct. 773, 776, 777, 90 L.Ed. 939, for failure of the complaint to state a claim upon which relief could be granted, the judgment of the District Court was correct.
311
In conclusion, it is appropriate to say that one need not agree, as a citizen, with what Tennessee has done or failed to do, in order to deprecate, as a judge, what the majority is doing today. Those observers of the Court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break with the past. Those who consider that continuing national respect for the Court's authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication, will view the decision with deep concern.
312
I would affirm.
313
APPENDIX TO OPINION OF MR. JUSTICE HARLAN.
314
THE INADEQUACY OF ARITHMETICAL FORMULAS AS MEASURES OF THE RATIONALITY OFTENNESSEE'S APPORTIONMENT.
315
Two of the three separate concurring opinions appear to concede that the Equal Protection Clause does not guarantee to each state voter a vote of approximately equal weight for the State Legislature. Whether the existing Tennessee apportionment is constitutional is recognized to depend only on whether it can find 'any possible justification in rationality' (369 U.S., p. 265, 82 S.Ct., p. 736); it is to be struck down only if 'the discrimination here does not fit any pattern' (369 U.S., p. 258, 82 S.Ct., p. 732).
316
One of the concurring opinions, that of my Brother STEWART, suggests no reasons which would justify a finding that the present distribution of state legislators is unconstitutionally arbitrary. The same is true of the majority opinion. My Brother CLARK, on the other hand, concludes that 'the apportionment picture in Tennessee is a topsy-turvical of gigantic proportions' (369 U.S., p. 254, 82 S.Ct., p. 730), solely on the basis of certain statistics presented in the text of his separate opinion and included in a more extensive Table appended thereto. In my view, that analysis is defective not only because the 'total representation' formula set out in footnote 7 of the opinion (369 U.S., p. 255, 82 S.Ct., pp. 730, 731), rests on faulty mathematical foundations, but, more basically, because the approach taken wholly ignores all other factors justifying a legislative determination of the sort involved in devising a proper apportionment for a State Legislature.
317
In failing to take any of such other matters into account and in focusing on a particular mathematical formula which, as will be shown, is patently unsound, my Brother CLARK'S opinion has, I submit, unwittingly served to bring into basrelief the very reasons that support the view that this complaint does not state a claim on which relief could be granted. For in order to warrant holding a state electoral apportionment invalid under the Equal Protection Clause, a court, in line with well-established constitutional doctrine, must find that none of the permissible policies and none of the possible formulas on which it might have been based could rationally justify particular inequalities.
I.
318
At the outset, it cannot be denied that the apportionment rules explicitly set out in the Tennessee Constitution are rational. These rules are based on the following obviously permissible policy determinations: (1) to utilize counties as electoral units; (2) to prohibit the division of any county in the composition of electoral districts; (3) to allot to each county that has a substantial voting population—at least two-thirds of the average voting population per county—a separate 'direct representative'; (4) to create 'floterial' districts (multicounty representative districts) made up of more than one county; and (5) to require that such districts be composed of adjoining counties.1 Such a framework unavoidably leads to unreliable arithmetic inequalities under any mathematical formula whereby the counties' 'total representation' is sought to be measured. It particularly results in egregiously deceptive disparities if the formula proposed in my Brother CLARKS'S opinion is applied.
319
That formula computes a county's 'total representation' by adding (1) the number of 'direct representatives' the county is entitled to elect; (2) a fraction of any other seats in the Tennessee House which are allocated to that county jointly with one or more others in a 'floterial district'; (3) triple the number of senators the county is entitled to elect alone; and (4) triple a fraction of any seats in the Tennessee Senate which are allocated to that county jointly with one or more others in a multicounty senatorial district. The fractions used for items (2) and (4) are computed by allotting to each county in a combined district an equal share of the House or Senate seat, regardless of the voting population of each of the counties that make up the election district.2
320
This formula is patently deficient in that it eliminates from consideration the relative voting power of the counties that are joined together in a single election district. As a result, the formula unrealistically assigns to Moore County one-third of a senator, in addition to its direct representative (369 U.S., p. 255, 82 S.Ct., p. 730), although it must be obvious that Moore's voting strength in the Eighteenth Senatorial District is almost negligible. Since Moore County could cast only 2,340 votes of a total eligible vote of 30,478 in the senatorial district, it should in truth be considered as represented by one-fifteenth of a senator. Assuming, arguendo, that any 'total representation' figure is of significance, Moore's 'total representation' should be 1.23, not 2.3
321
The formula suggested by my Brother CLARK must be adjusted regardless whether one thinks, as I assuredly do not, that the Federal Constitution requires that each vote be given equal weight. The correction is necessary simply to reflect the real facts of political life. It may, of course, be true that the floterial representative's 'function is to represent the whole district' (369 U.S., p. 256, 82 S.Ct., p. 731). But can it be gainsaid that so long as elections within the district are decided not by a county-unit system, in which each county casts one vote, but by adding the total number of individual votes cast for each candidate, the concern of the elected representatives will primarily be with the most populous counties in the district?
II.
322
I do not mean to suggest that any mathematical formula, albeit an 'adjusted' one, would be a proper touchstone to measure the rationality of the present or of appellants' proposed apportionment plan. For, as the Table appended to my Brother CLARK'S opinion so conclusively shows, whether one applies the formula he suggests or one that is adjusted to reflect proportional voting strength within an election district, no plan of apportionment consistent with the principal policies of the Tennessee Constitution could provide proportionately equal 'total representation' for each of Tennessee's 95 counties.
323
The pattern suggested by the appellants in Exhibits 'A' and 'B' attached to their complaint is said to be a 'fair distribution' which accords with the Tennessee Constitution, and under which each of the election districts represents approximately equal voting population. But even when tested by the 'adjusted' formula, the plan reveals gross 'total representation' disparities that would make it appear to be a 'crazy quilt.' For example, Loudon County, with twice the voting population of Humphreys County would have less representation than Humphreys, and about one-third the representation of Warren County, which has only 73 more voters. Among the more populous counties, similar discrepancies would appear. Although Anderson County has only somewhat over 10% more voters than Blount County, it would have approximately 75% more representation. And Blount would have approximately two-thirds the representation of Montgomery County, which has about 13% less voters.4
III.
324
The fault with a purely statistical approach to the case at hand lies not with the particular mathematical formula used, but in the failure to take account of the fact that a multitude of legitimate legislative policies, along with circumstances of geography and demography, could account for the seeming electoral disparities among counties. The principles set out in the Tennessee Constitution are just some of those that were deemed significant. Others may have been considered and accepted by those entrusted with the responsibility for Tennessee's apportionment. And for the purposes of judging constitutionality under the Equal Protection Clause it must be remembered that what is controlling on the issue of 'rationality' is not what the State Legislature may actually have considered but what it may be deemed to have considered.
325
For example, in the list of 'horribles' cited by my Brother CLARK (369 U.S., p. 255, 82 S.Ct., p. 730), all the 'underrepresented' counties are semiurban: all contain municipalities of over 10,000 population.5 This is not to say, however, that the presence of any such municipality within a county necessarily demands that its proportional representation be reduced in order to render it consistent with an 'urban versus rural' plan of apportionment. Other considerations may intervene and outweigh the Legislature's desire to distribute seats so as to achieve a proper balance between urban and rural interests. The size of a county, in terms of its total area, may be a factor.6 Or the location within a county of some major industry may be thought to call for dilution of voting strength.7 Again, the combination of certain smaller counties with their more heavily populated neighbors in senatorial or 'floterial' districts may result in apparent arithmetic inequalities.8
326
More broadly, the disparities in electoral strength among the various counties in Tennessee, both those relied upon by my Brother CLARK and others, may be accounted for by various economic,9 political,10 and geographic11 considerations. No allegation is made by the appellants that the existing apportionment is the result of any other forces than are always at work in any legislative process; and the record, briefs, and arguments in this Court themselves attest to the fact that the appellants could put forward nothing further at a trial.
327
By disregarding the wide variety of permissible legislative considerations that may enter into a state electoral apportionment by Brother CLARK has turned a highly complex process into an elementary arithmetical puzzle. It is only by blinking reality that such an analysis can stand and that the essentially legislative determination can be made the subject of judicial inquiry.
IV.
328
Apart from such policies as those suggested which would suffice to justify particular inequalities, there is a further consideration which could rationally have led the Tennessee Legislature, in the exercise of a deliberate choice, to maintain the status quo. Rigidity of an apportionment pattern may be as much a legislative policy decision as is a provision for periodic reapportionment. In the interest of stability, a State may write into its fundamental law a permanent distribution of legislators among its various election districts, thus forever ignoring shifts in population. Indeed, several States have achieved this result by providing for minimum and maximum representation from various political subdivisions such as counties, districts, cities, or towns. See Harvey, Reapportionments of State Legislatures—Legal Requirements, 17 Law & Contemp. Probs. (1952), 364, 368—372.
329
It is said that one cannot find any rational standard in what the Tennessee Legislature has failed to do over the past 60 years. But surely one need not search far to find rationality in the Legislature's continued refusal to recognize the growth of the ruban population that has accompanied the development of industry over the past half decade. The existence of slight disparities between rural areas does not overcome the fact that the foremost apparent legislative motivation has been to preserve the electoral strength of the rural interests notwithstanding shifts in population. And I understand it to be conceded by at least some of the majority that this policy is not rendered unconstitutional merely because it favors rural voters.
330
Once the electoral apportionment process is recognized for what it is—the product of legislative give-and-take and of compromise among policies that often conflict—the relevant constitutional principles at once put these appellants out of the federal courts.
1
Public Acts of Tennessee, c. 122 (1901), now Tenn.Code Ann. §§ 3—101 to 3—107. The full text of the 1901 Act as amended appears in an Appendix to this opinion, 369 U.S., p. 237, 82 S.Ct., p. 720.
2
The three-judge court was convened pursuant to the order of a single district judge, who, after he had reviewed certain decisions of this Court and found them distinguishable in features 'that may ultimately prove to be significant,' held that the complaint was not so obviously without merit that he would be justified in refusing to convene a three-judge court. 175 F.Supp. 649, 652.
3
We heard argument first at the 1960 Term and again at this Term when the case was set over for reargument. 366 U.S. 907, 81 S.Ct. 1082.
4
A county having less than, but at least two-thirds of, the population required to choose a Representative is allocated one Representative. See also Tenn.Const. Art. II, § 6. A common and much more substantial departure from the number-of-voters or total-population standard is the guaranty of at least one seat to each county. See, e.g., Kansas Const. Art. 2, § 2; N.J.Const. Art. 4, § 3, 1, N.J.S.A.
While the Tennessee Constitution speaks of the number of 'qualified voters,' the exhibits attached to the complaint use figures based on the number of persons 21 years of age and over. This basis seems to have been employed by the General Assembly in apportioning legislative seats from the outset. The 1870 statute providing for the first enumeration, Acts of 1870 (1st Sess.), c. 107, directed the courts of
the several counties to select a Commissioner to enumerate 'all the male inhabitants of their respective counties, who are twenty-one years of age and upward, who shall be resident citizens of their counties on the first day of January, 1871. * * *.' Reports compiled in the several counties on this basis were submitted to the General Assembly by the Secretary of State and were used in the first apportionment. Appendix to Tenn.S.J., 1871, 41—43. Yet such figures would not reflect the numbers of persons qualified to exercise the franchise under the then-governing qualifications: (a) citizenship; (b) residence in the State 12 months, and in the county 6 months; (c) payment of poll taxes for the preceding year unless entitled to exemption. Acts of 1870 (2d Sess.), c. 10. (These qualifications continued at least until after 1901. See Shan.Tenn.Code Ann. §§ 1167, 1220 (1896; Supp. 1904).) Still, when the General Assembly directed the Secretary of State to do all he could to obtain complete reports from the counties, the Resolution spoke broadly of 'the impossibility of * * * (redistricting) without the census returns of the voting population from each county * * *.' Tenn.S.J., 1871, 46—47, 96. The figures also showed a correlation with Federal Census figures for 1870. The Census reported 259,016 male citizens 21 and upward in Tennessee. Ninth Census of the United States, 1870, Statistics of the Population 635 (1872). The Tennessee Secretary of State's Report, with 15 counties not reported, gave a figure of 237,431. Using the numbers of actual votes in the last gubernatorial election for those 15 counties, the Secretary arrived at a total of 250,025. Appendix to Tenn.S.J., 1871, 41—43. This and subsequent history indicate continued reference to Census figures and finally in 1901, abandonment of a state enumeration in favor of the use of Census figures. See notes 7, 8, 9, infra. See also Williams, Legislative Apportionment in Tennessee, 20 Tenn.L.Rev. 235, 236, n. 6. It would therefore appear that unless there is a contrary showing at the trial, appellants' current figures, taken from the United States Census Reports, are apposite.
5
Acts of 1871 (1st Sess.), c. 146.
6
Acts of 1870 (1st Sess.), c. 107.
7
The statute authorizing the enumeration was Acts of 1881 (1st Sess.), c. 124. The enumeration commissioners in the counties were allowed 'access to the U.S. Census Reports of the enumeration of 1880, on file in the offices of the County Court Clerks of the State, and a reference to said reports by said commissioners shall be legitimate as an auxiliary in the enumeration required. * * *' Ibid., § 4.
The United States Census reported 330,305 male citizens 21 and upward in Tennessee. The Tenth Census of the United States, 1880, Compendium 596 (1883). The Tennessee Secretary of State's Report gave a figure of 343,817, Tenn.H.J. (1st Extra.Sess.), 1881, 12—14 (1882).
The General Assembly was enlarged in accordance with the constitutional mandate since the State's population had passed 1,500,000. Acts of 1881 (1st Extra.Sess.), c. 5; and see, id., S.J.Res. No. III; see also Tenth Census of the United States, 1880, Statistics of the Population 77 (1881). The statute apportioning the General Assembly was Acts of 1881 (1st Extra.Sess.), c. 6.
8
Acts of 1891, c. 22; Acts of 1891 (Extra.Sess.), c. 10. Reference to United States Census figures was allowed just as in 1881, see supra, n. 7. The United States Census reported 402,476 males 21 and over in Tennessee. The Eleventh Census of the United States, 1890, Population (Part I) 781 (1895). The Tennessee Secretary of State's Report gave a figure of 399,575. ,1 Tenn.S.J., 1891, 473—474.
9
Acts of 1901, p. 1260, S.J.Res. No. 35; Acts of 1901, c. 122. The Joint Resolution said: 'The Federal census of 1900 has been very recently taken and by reference to said Federal census an accurate enumeration of the qualified voters of the respective counties of the State of Tennessee can be ascertained and thereby save the expense of an actual enumeration * * *.'
10
For the history of legislative apportionment in Tennessee, including attempts made since 1901, see Tenn.S.J., 1959, 909—930; and 'A Documented Survey of Legislative Apportionment in Tennessee, 1870—1957,' which is attached as exhibit 2 to the intervening complaint of Mayor West of Nashville, both prepared by the Tennessee State Historian, Dr. Robert H. White. Examples of preliminary steps are: In 1911, the Senate called upon the Redistricting Committee to make an enumeration of qualified voters and to use the Federal Census of 1910 as the basis. Acts of 1911, S.J.Res. No. 60, p. 315. Similarly, in 1961, the Senate called for appointment of a select committee to make an enumeration of qualified voters. Acts of 1961, S.J.Res. No. 47, p. 1219. In 1955, the Senate called for a study of reapportionment. Tenn.S.J., 1955, 224; but see id., at 1403. Similarly, in 1961, the House directed the State Legislative Council to study methods of reapportionment. Acts of 1961, H.J.Res. No. 65, p. 1114.
11
Twelfth Census of the United States, 1900, Population (Part 1) 39 (1901); (Part 2) 202 (1902).
12
United States Census of Population: 1960, General Population Characteristics—Tennessee, Table 16 (1961).
13
In the words of one of the intervening complaints, the apportionment was 'wholly arbitrary, * * * and, indeed, based upon no lawfully pertinent factor whatever.'
14
The appellants claim that no General Assembly constituted according to the 1901 Act will submit reapportionment proposals either to the people or to a Constitutional Convention. There is no provision for popular initiative in Tennessee. Amendments proposed in the Senate or House must first be approved by a majority of all members of each House and again by two-thirds of the members in the General Assembly next chosen. The proposals are then submitted to the people at the next general election in which a Governor is to be chosen. Alternatively, the legislature may submit to the people at any general election the question of calling a convention to consider specified proposals. Such as are adopted at a convention do not, however, become effective unless approved by a majority of the qualified voters voting separately on each proposed change or amendment at an election fixed by the convention. Conventions shall not be held oftener than once in six years. Tenn.Const. Art. XI, § 3. Acts of 1951, c. 130, § 3, and Acts of 1957, c. 340, § 3, provided that delegates to the 1953 and 1959 conventions were to be chosen from the counties and floterial districts just as are members of the State House of Representatives. The General Assembly's call for a 1953 Constitutional Convention originally contained a provision 'relating to the appointment (sic) of representatives and senators' but this was excised. Tenn.H.J., 1951, 784. A Resolution introduced at the 1959 Constitutional Convention and reported unfavorably by the Rules Committee of the Convention was as follows:
'By Mr. Chambliss (of Hamilton County), Resolution No. 12 Relative to Convention considering reapportionment, which is as follows:
'WHEREAS, there is a rumor that this Limited Convention has been called for the purpose of postponing for six years a Convention that would make a decision as to reapportionment; and
'WHEREAS, there is pending in the United States Courts in Tennessee a suit under which parties are seeking, through decree, to compel reapportionment; and
'WHEREAS, it is said that this Limited Convention, which was called for limited consideration, is yet a Constitutional Convention within the language of the Constitution as to Constitutional Conventions, forbidding frequent Conventions in the last sentence of Article Eleven, Section 3, second paragraph, more often than each six years, to-wit:
"No such Convention shall be held oftener than once in six years.'
'Now, THEREFORE, BE IT RESOLVED, That it is the consensus of opinion of the members of this Convention that since this is a Limited Convention as hereinbefore set forth another Convention could be had if it did not deal with the matters submitted to this Limited Convention.
'BE IT FURTHER RESOLVED, That it is the consensus of opinion of this Convention that a Convention should be called by the General Assembly for the purpose of considering reapportionment in order that a possibility of Court enforcement being forced on the Sovereign State of Tennessee by the Courts of the National Government may be avoided.
'BE IT FURTHER RESOLVED, That this Convention be adjourned for two years to meet again at the same time set forth in the statute providing for this Convention, and that it is the consensus of opinion of this body that it is within the power of the next General Assembly of Tennessee to broaden the powers of this Convention and to authorize and empower this Convention to consider a proper amendment to the Constitution that will provide, whe submitted to the electorate, a method of reapportionment.' Tenn.Constitutional Convention of 1959, The Journal and Debates, 35, 278.
15
It is clear that appellants' federal constitutional claims rest exclusively on alleged violation of the Fourteenth Amendment. Their primary claim is that the 1901 statute violates the Equal Protection Clause of that amendment. There are allegations invoking the Due Process Clause but from the argument and the exhibits it appears that the Due Process Clause argument is directed at certain tax statutes. Insofar as the claim involves the validity of those statutes under the Due Process Clause we find it unnecessary to decide its merits. And if the allegations regarding the tax statutes are designed as the framework for proofs as to the effects of the allegedly discriminatory apportionment, we need not rely upon them to support our holding that the complaint states a federal constitutional claim of violation of the Equal Protection Clause. Whether, when the issue to be decided is one of the constitutional adequacy of this particular apportionment, taxation arguments and exhibits as now presented add anything, or whether they could add anything however presented, is for the District Court in the first instance to decide.
The complaint, in addition to the claims under the Federal Constitution, also alleges rights, and the General Assembly's duties, under the Tennessee Constitution. Since we hold that appellants have—if it develops at trial that the facts support the allegations—a cognizable federal constitutional cause of action resting in no degree on rights guaranteed or putatively guaranteed by the Tennessee Constitution, we do not consider, let alone enforce, rights under a State Constitution which go further than the protections of the Fourteenth Amendment. Lastly, we need not assess the legal significance, in reaching our conclusion, of the statements of the complaint that the apportionment effected today under the 1901 Act is 'contrary to the philosophy of government in the United States and all Anglo-Saxon jurisprudence * * *.'
16
We need not reach the question of indispensable parties because the District Court has not yet decided it.
17
The accuracy of calling even such dismissals 'jurisdictional' was questioned in Bell v. Hood. See 327 U.S. at 683, 66 S.Ct. at 776.
18
42 U.S.C. § 1983, 42 U.S.C.A. § 1983 provides: '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.'
19
This Court has frequently sustained District Court jurisdiction under 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3) or its predecessors to entertain suits to redress deprivations of rights secured against state infringement by the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Douglas v. Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138; cf. Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984; Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Egan v. Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741.
20
Since that case was not brought to the Court until after the election had been held, the Court cited not only Wood v. Broom, but also directed dismissal for mootness, citing Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620.
21
Compare Boeing Aircraft Co. v. King County, 330 U.S. 803, 67 S.Ct. 972, 91 L.Ed. 1262 ('the appeal is dismissed for want of jurisdiction'). See Coleman v. Miller, 307 U.S. 433, 440, 59 S.Ct. 972, 83 L.Ed. 1385.
22
Matthews did affirm a judgment that may be read as a dismissal for want of jurisdiction, 179 F.Supp. 470. However, the motion to affirm also rested on the ground of failure to state a claim upon which relief could be granted. Cf. text following, on MacDougall v. Green. And see text, infra, 369 U.S., p. 236, 82 S.Ct., p. 720.
23
The Mayor of Nashville suing 'on behalf of himself and all residents of the City of Nashville, Davidson County, . . .' and the Cities of Chattanooga (Hamilton County) and Knoxville (Knox County), each suing on behalf of its residents, were permitted to intervene as parties plaintiff. Since they press the same claims as do the initial plaintiffs, we find it unnecessary to decide whether the intervenors would have standing to maintain this action in their asserted representative capacities.
24
The complaint also contains an averment that the appellants sue 'on their own behalf and on behalf of all other voters in the State of Tennessee.' (Emphasis added.) This may be read to assert a claim that voters in counties allegedly over-represented in the General Assembly also have standing to complain. But it is not necessary to decide that question in this case.
25
The duties of the respective appellees are alleged to be as follows:
'Defendant, Joe C. Carr, is the duly elected, qualified and acting Secretary of State of the State of Tennessee, with his office in Nashville in said State, and as such he is charged with the duty of furnishing blanks, envelopes and information slips to the County Election Commissioners, certifying the results of elections and maintaining the records thereof; and he is further ex officio charged, together with the Governor and the Attorney General, with the duty of examining the election returns received from the County Election Commissioners and declaring the election results, by the applicable provisions of the Tennessee Code Annotated, and by Chapter 164 of the Acts of 1949, inter alia.
'Defendant, George F. McCanless, is the duly appointed and acting Attorney General of the State of Tennessee, with his office in Nashville in said State, and is charged with the duty of advising the officers of the State upon the law, and is made by Section 23—1107 of the Tennessee Code Annotated a necessary party defendant in any declaratory judgment action where the constitutionality of statutes of the State of Tennessee is attacked, and he is ex-officio charged, together with the Governor and the Secretary of State, with the duty of declaring the election results, under Section 2—140 of the Tennessee Code Annotated.
'Defendant, Jerry McDonald, is the duly appointed Coordinator of Elections in the State of Tennessee, with his office in Nashville, Tennessee, and as such official, is charged with the duties set forth in the public law enacted by the 1959 General Assembly of Tennessee creating said office (chapter 148).
'Defendants, Dr. Sam Coward, James Alexander, and Hubert Brooks are the duly appointed and qualified members constituting the State Board of Elections, and as such they are charged with the duty of appointing the Flection Commissioners for all the counties of the State of Tennessee, the organization and supervision of the biennial elections as provided by the Statutes of Tennessee, Chapter 9 of Title 2 of the Tennessee Code Annotated, Sections 2—901, et seq.
'That this action is brought against the aforenamed defendants in their representative capacities, and that said Election Commissioners are sued also as representatives of all of the County Election Commissioners in the State of Tennessee, such persons being so numerous as to make it impracticable to bring them all before the court; that there is a common question of law involved, namely, the constitutionality of Tennessee laws set forth in the Tennessee Code Annotated, Section 3—101 through Section 3—109, inclusive; that common relief is sought against all members of said Election Commissions in their official capacities, it being the duties of the aforesaid County Election Commissioners, within their respective jurisdictions, to appoint the judges of elections, to maintain the registry of qualified voters of said County, certify the results of elections held in said County to the defendants State Board of Elections and Secretary of State, and of preparing ballots and taking other steps to prepare for and hold elections in said Counties by virtue of Sections 2—1201, et seq. of Tennessee Code Annotated, and Section 2—301, et seq. of Tennessee Code Annotated, and Chapter 164 of the Acts of 1949, inter alia.'
The question whether the named defendants are sufficient parties remains open for consideration on remand.
26
Smiley v. Holm, supra, 285 U.S., at 361, 52 S.Ct., at 397 ("citizen, elector and taxpayer' of the state'); Koenig v. Flynn, supra, 285 U.S., at 379, 52 S.Ct., at 403 ("citizens and voters' of the state'); Wood v. Broom, supra, 287 U.S., at 4, 53 S.Ct., at 1 ('citizen of Mississippi, a qualified elector under its laws, and also qualified to be a candidate for election as Representative in Congress'); cf. Carroll v. Becker, supra (candidate for office).
27
Mr. Justice Rutledge was of the view that any question of standing was settled in Smiley v. Holm, supra; Mr. Justice Black stated 'that petitioner had standing to sue, since the facts alleged show that they have been injured as individuals.' He relied on Coleman v. Miller, 307 U.S. 433, 438, 467, 59 S.Ct. 972, 975, 988, 83 L.Ed. 1385. See 328 U.S. 564, 568, 66 S.Ct. 1208, 1209.
Commentators have suggested that the following statement in Mr. Justice Frankfurter's opinion might imply a view that appellants there had no standing: 'This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity.' 328 U.S. at 552, 66 S.Ct. at 1199. See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265, 1298 (1961); Lewis, Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057, 1081—1083 (1958). But since the opinion goes on to consider the merits, it seems that this statement was not intended to intimate any view that the plaintiffs in that action lacked standing. Nor do the cases cited immediately after the above quotation deal with standing. See especially Lane v. Wilson, 307 U.S. 268, 272—273, 59 S.Ct. 872, 874—875, 83 L.Ed. 1291.
28
MacDougall v. Green, supra, 335 U.S., at 282, 69 S.Ct., at 2 ('the 'Progressive Party,' its nominees for United States Senator, Presidential Electors, and State offices, and several Illinois voters'); South v. Peters, supra, 339 U.S., at 277, 70 S.Ct., at 642 ('residents of the most populous county in the state'); Radford v. Gary, supra, 145 F.Supp. 541, 542 ('citizen of Oklahoma and resident and voter in the most populous county'); Matthews v. Handley, supra ('citizen of the State'); see also Hawke v. Smith (No. 1), 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871; Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505; Coleman v. Miller, 307 U.S. 433, 437—446, 59 S.Ct. 972, 974—978, 83 L.Ed. 1385.
29
Cook v. Fortson, 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596; Turman v. Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262; MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3; South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834; Remmey v. Smith, 342 U.S. 916, 72 S.Ct. 368, 96 L.Ed. 685; Anderson v. Jordan, 343 U.S. 912, 72 S.Ct. 648, 96 L.Ed. 1328; Kidd v. McCanless, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157; Radford v. Gary, 352 U.S. 991, 77 S.Ct. 559, 1 L.Ed.2d 540.
30
'The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.' U.S.Const. Art. IV, § 4.
31
E.g., 'The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—'the political'—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.' Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 311, 62 L.Ed. 726.
32
See Doe ex dem. Clark v. Braden, 16 How. 635, 657, 14 L.Ed. 1090; Taylor v. Morton, 23 Fed.Cas. page 733, No. 13,799 (C.C.D.Mass.) (Mr. Justice Curtis), affirmed, 2 Black 481, 17 L.Ed. 277.
33
See Doe v. Braden, 16 How. 635, 657, 14 L.Ed. 1090.
34
And see Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633.
35
United States v. Klintock, 5 Wheat. 144, 149, 5 L.Ed. 55; see also United States v. Palmer, 3 Wheat. 610, 634—635, 4 L.Ed. 471.
36
Foster & Elam v. Neilson, 2 Pet. 253, 307, 7 L.Ed. 415, and see Williams v. Suffolk Insurance Co., 13 Pet. 415, 420, 10 L.Ed. 226.
37
Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380, 69 S.Ct. 140, 142, 93 L.Ed. 76; De Lima v. Bidwell, 182 U.S. 1, 180 200, 21 S.Ct. 743, 746—754, 45 L.Ed. 1041.
38
See, e.g., Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413.
39
Contrast Martin v. Mott, supra.
40
But cf. Dakota Central Tel. Co. v. South Dakota, 250 U.S. 163, 184, 187, 39 S.Ct. 507, 509, 510, 63 L.Ed. 910.
41
Cf. Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994. See also United States v. Sprague, 282 U.S. 716, 732, 51 S.Ct. 220, 222, 75 L.Ed. 640.
42
See also Fellows v. Blacksmith, 19 How. 366, 372, 15 L.Ed. 684; United States v. OldSettlers, 148 U.S. 427, 466, 13 S.Ct. 650, 666, 37 L.Ed. 509; and compare Doe v. Braden, 16 How. 635, 657, 14 L.Ed. 1090.
43
This case, so frequently cited for the broad proposition that the status of an Indian tribe is a matter for the political departments, is in fact a noteworthy example of the limited and precise impact of a political question. The Cherokees brought an original suit in this Court to enjoin Georgia's assertion of jurisdiction over Cherokee territory and abolition of Cherokee government and laws. Unquestionably the case lay at the vortex of most fiery political embroilment. See 1 Warren, The Supreme Court in United States History (Rev. ed.), 729—779. But in spite of some broader language in separate opinions, all that the Court held was that it possessed no original jurisdiction over the suit: for the Cherokees could in no view be considered either a State of this Union or a 'foreign state.' Chief Justice Marshall treated the question as one of de novo interpretation of words in the Constitution. The Chief Justice did say that 'The acts of our government plainly recognize the Cherokee nation
as a state, and the courts are bound by those acts,' but here he referred to their existence 'as a state, as a distinct political society, separated from others * * *.' From there he went to 'A question of much more difficulty * * *. Do the Cherokees constitute a foreign state in the sense of the constitution?' Id., 5 Pet. at 16, 30 U.S. at 16. Thus, while the Court referred to 'the political' for the decision whether the tribe was an entity, a separate polity, it held that whether being an entity the tribe had such status as to be entitled to sue originally was a judicially soluble issue: criteria were discoverable in relevant phrases of the Constitution and in the common understanding of the times. As to this issue, the Court was not hampered by problems of the management of unusual evidence or of possible interference with a congressional program. Moreover, Chief Justice Marshall's dictum that 'It savours too much of the exercise of political power to be within the proper province of the judicial department,' id., 5 Pet. at 20, 30 U.S. at 20, was not addressed to the issue of the Cherokees' status to sue, but rather to the breadth of the claim asserted and the impropriety of the relief sought. Compare Georgia v. Stanton, 6 Wall. 50, 77, 18 L.Ed. 721. The Chief Justice made clear that if the issue of the Cherokees' rights arose in a customary legal context, 'a proper case with proper parties,' it would be justiciable Thus, when the same dispute produced a case properly brought, in which the right asserted was one of protection under federal treaties and laws from conflicting state law, and the relief sought was the voiding of a conviction under that state law, the Court did void the conviction. Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483. There, the fact that the tribe was a separate polity served as a datum contributing to the result, and despite the consequences in a heated federal-state controversy and the opposition of the other branches of the National Government, the judicial power acted to reverse the State Supreme Court. An example of similar isolation of a political question in the decision of a case is Luther v. Borden, 7 How. 1, 12 L.Ed. 581; see infra.
44
7 How., at 29. And see 11 The Writings and Speeches of Daniel Webster 217 (1903).
45
See Mowry, The Dorr War (1901), and its exhaustive bibliography. And for an account of circumstances surrounding the decision here, see 2 Warren, The Supreme Court in United States History (Rev. ed.), 185—195.
'Dorr himself, head of one of the two groups and held in a Rhode Island jail under a conviction for treason, had earlier sought a decision from the Supreme Court that his was the lawful government. His application for original habeas corpus in the Supreme Court was denied because the federal courts then lacked authority to issue habeas for a prisoner held under a state court sentence. Ex parte Dorr, 3 How. 103, 11 L.Ed. 514.
46
7 How., at 39.
47
Id., at 39, 40.
48
Even though the Court wrote of unrestrained legislative and executive authority under this Guaranty, thus making its enforcement a political question, the Court plainly implied that the political question barrier was no absolute: 'Unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it.' 7 How., at 45. Of course, it does not necessarily follow that if Congress did not act, the Court would. For while the judiciary might be able to decide the limits of the meaning of 'republican form,' and thus the factor of lack of criteria might fall away, there would remain other possible barriers to decision because of primary commitment to another branch, which would have to be considered in the particular fact setting presented.
That was not the only occasion on which this Court indicated that lack of criteria does not obliterate the Guaranty's extreme limits: 'The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended.
'The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution.' Minor v. Happersett, 21 Wall. 162, 175—176, 22 L.Ed. 627. There, the question was whether a government republican in form could deny the vote to women.
In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219, upheld a murder conviction against a claim that the relevant codes had been invalidly enacted. The Court there said:
'By the Constitution, a republican form of government is guaranteed to every state in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, national and State, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities.' 139 U.S. at 461, 11 S.Ct. at 577. But the Court did not find any of these fundamental principles violated.
49
But cf. Hawke v. Smith (No. 1), 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871; National Prohibition Cases, State of Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 64 L.Ed. 946.
50
6 Wall., at 65, 66.
51
The First Reconstruction Act opened: 'Whereas no legal State governments * * * now exists (sic) in the rebel States of * * * Georgia (and) Mississippi * * *; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: * * *.' 14 Stat. 428. And see 15 Stat. 2, 14.
52
In Mississippi v. Johnson, 4 Wall. 475, 18 L.Ed. 437, the State sought to enjoin the President from executing the Acts, alleging that his role was purely ministerial. The Court held that the duties were in no sense ministerial, and that although the State sought to compel inaction rather than action, the absolute lack of precedent for any such distinction left the case one in which 'general principles * * * forbid judicial interference with the excrcise of Executive discretion.' 4 Wall., at 499. See also Mississippi v. Stanton, 154 U.S. 554, 14 S.Ct. 1209, 18 L.Ed. 725; and see 2 Warren, The Supreme Court in United States History (Rev. ed.), 463.
For another instance of congressional action challenged as transgressing the Guaranty Clause, see Collector v. Day, 11 Wall. 113, 125—126, 20 L.Ed. 122, overruled, Graves v. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927.
53
On the other hand, the implication of the Guaranty Clause in a case concerning congressional action does not always preclude judicial action. It has been held that the clause gives Congress no power to impose restrictions upon a State's admission which would undercut the constitutional mandate that the States be on an equal footing. Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853. And in Texas v. White, 7 Wall. 700, 19 L.Ed. 227, although Congress had determined that the State's government was not republican in form, the State's standing to bring an original action in this Court was sustained.
54
See, infra, 369 U.S., p. 235, 82 S.Ct., p. 720, considering Kidd v. McCanless, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157.
55
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 183, 12 S.Ct. 375, 389, 36 L.Ed. 103 (Field, J., dissenting).
56
Gomillion v. Lightfoot, 5 Cir., 270 F.2d 594, relying upon, inter alia, Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151.
57
The Court's opinion was joined by Mr. Justice Douglas, noting his adherence to the dissents in Colegrove and South v. Peters, supra; and the judgment was concurred in by Mr. Justice Whittaker, who wrote that the decision should rest on the Equal Protection Clause rather than on the Fifteenth Amendment, since there had been not solely a denial of the vote (if there had been that at all) but also a 'fencing out' of a racial group.
58
No holding to the contrary is to be found in Cave v. Newell, 246 U.S. 650, 38 S.Ct. 334, 62 L.Ed. 921, dismissing a writ of error to the Supreme Court of Missouri, 272 Mo. 653, 199 S.W. 1014; or in Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497.
59
The ground of Mr. Justice Rutledge's vote to affirm is further explained in his footnote, 3, 328 U.S. at 566, 66 S.Ct. at 1209: "The power of a court of equity to act is a discretionary one. * * * Where a federal court of equity is asked to interfere with the enforcement of state laws, it should do so only 'to prevent irreparable injury which is clear and
imminent." American Federation of Labor v. Watson, 327 U.S. 582, (593) 66 S.Ct. 761, 766, (90 L.Ed. 873) and cases cited.'
No constitutional questions, including the question whether voters have a judicially enforceable constitutional right to vote at elections of congressmen from districts of equal population, were decided in Colegrove. Six of the participating Justices reached the questions but divided three to three on their merits. Mr. Justice Rutledge believed that it was not necessary to decide them. He said: 'There is (an alternative to constitutional decision) in this case. And I think the gravity of the constitutional questions raised so great, together with the possibilities for collision (with the political departments of the Government), that the admonition (against avoidable constitutional decision) is appropriate to be followed here. Other reasons support this view, including the fact that, in my opinion, the basic ruling and less important ones in Smiley v. Holm, supra, would otherwise be brought into question.' 328 U.S. at 564—565, 66 S.Ct. at 1208. He also joined with his brethren who shared his view that the issues were justiciable in considering that Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131, decided no constitutional questions but 'the Court disposed of the cause on the ground that the 1929 Reapportionment Act, 46 Stat. 21, did not carry forward the requirements of the 1911 Act, 37 Stat. 13, and declined to decide whether there was equity in the bill.' 328 U.S. at 565, 66 S.Ct. at 1208 see also, id., at 573, 66 S.Ct. at 1212. We agree with this view of Wood v. Broom.
60
See also Buford v. State Board of Elections, 206 Tenn. 480, 334 S.W.2d 726; State ex rel. Sanborn v. Davidson County Board of Election Comm'rs, No. 36,391 Tenn.Sup.Ct., Oct. 29, 1954 (unreported); 8 Vand.L.Rev. 501 (1955).
1
I feel strongly that many of the cases cited by the Court and involving so-called 'political' questions were wrongly decided.
In joining the opinion, I do not approve those decisions but only construe the Court's opinion in this case as stating an accurate historical account of what the prior cases have held.
2
The statements in Luther v. Borden, 7 How. 1, 42, 12 L.Ed. 581, that this guaranty is enforceable only by Congress or the Chief Executive is not maintainable. Of course the Chief Executive, not the Court, determines how a State will be protected against invasion. Of course each House of Congress, not the Court, is 'the judge of the elections, returns, and qualifications of its own members.' Article I, Section 5, Clause 1. But the abdication of all judicial functions respecting voting rights (7 How. at 41), however justified by the peculiarities of the charter form of government in Rhode Island at the time of Dorr's Rebellion, states no general principle. It indeed is contrary to the cases discussed in the body of this opinion—the modern decisions of the Court that give the full panoply of judicial protection to voting rights. Today we would not say with Chief Justice Taney that it is no part of the judicial function to protect the right to vote of those 'to whom it is denied by the written and established constitution and laws of the State.' Ibid.
Moreover, the Court's refusal to examine the legality of the regime of martial law which had been laid upon Rhode Island (id. at 45—46) is indefensible, as Mr. Justice Woodbury maintained in his dissent. Id. at 59 et seq. Today we would ask with him: '* * * who
could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency?' Id. at 67.
Justice Woodbury went on to say:
'It would be alarming enough to sanction here an unlimited power, exercised either by legislatures, or the executive, or courts, when all our governments are themselves governments of limitations and checks, and of fixed and known laws, and the people a race above all others jealous of encroachments by those in power. And it is far better that those persons should be without the protection of the ordinary laws of the land who disregard them in an emergency, and should look to a grateful country for indemnity and pardon, than to allow, beforehand, the whole frame of jurisprudence to be overturned, and every thing placed at the mercy of the bayonet.
'No tribunal or department in our system of governments ever can be lawfully authorized to dispense with the laws, like some of the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole body of them; or, in other words, appoint an unrestrained military dictator at the head of armed men.
'Whatever stretches of such power may be ventured on in great crises, they cannot be upheld by the laws, as they prostrate the laws and ride triumphant over and beyond them, however the Assembly of Rhode Island, under the exigency, may have hastily supposed that such a measure in this instance was constitutional. It is but a branch of the omnipotence claimed by Parliament to pass bills of attainder, belonging to the same dangerous and arbitrary family with martial law.' Id. at 69—70.
What he wrote was later to become the tradition, as expressed by Chief Justice Hughes in Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 196, 77 L.Ed. 375: 'What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.'
3
The category of the 'political' question is, in my view, narrower than the decided cases indicate. 'Even the English courts have held that a resolution of one House of Parliament does not change the law (Stockdale v. Hansard (1839) 9 A. & E. 1; and Bowles v. Bank of England (No. 2) (1913) 1 Ch. 57), and these decisions imply that the House of Commons acting alone does not constitute the 'Parliament' recognised by the English courts.' 103 Sol.Jour. 995, 996. The Court in Bowles v. Bank of England, (1913) 1 Ch. 57, 84—85, stated: 'By the statute 1 W. & M., usually known as the Bill of Rights, it was finally settled that there could be no taxation in this country except under authority of an Act of Parliament. The Bill of Rights still remains unrepealed, and no practice or custom, however prolonged, or however acquiesced in on the part of the subject, can be relied on by the Crown as justifying any infringement of its provisions. It follows that, with regard to the powers of the Crown to levy taxation, no resolution, either of the Committee for Ways and Means or of the House itself, has any legal effect whatever. Such resolutions are necessitated by a parliamentary procedure adopted with a view to the protection of the subject against the hasty imposition of taxes, and it would be strange to find them relied on as justifying the Crown in levying a tax before such tax is actually imposed by Act of Parliament.'
In The Pocket Veto Case, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894, the Court undertook a review of the veto provisions of the Constitution and concluded that the measure in litigation had not become a law. Cf. Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385.
Georgia v. Stanton, 6 Wall. 50, 18 L.Ed. 721, involved the application of the Reconstruction Acts to Georgia—laws which destroyed by force the internal regime of that State. Yet the Court refused to take jurisdiction. That question was no more 'political' than a host of others we have entertained. See, e.g., Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153; Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689.
Today would this Court hold nonjusticiable or 'political' a suit to enjoin a Governor who, like Fidel Castro, takes everything into his own hands and suspends all election laws?
Georgia v. Stanton, supra, expresses a philosophy at war with Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281, and Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688. The dominance of the civilian authority has been expressed from the beginning. See Wise v. Withers, 3 Cranch 331, 337, 2 L.Ed. 457; Sterling v. Constantin, supra, note 2.
4
We are told by the National Institute of Municipal Law Officers in an amicus brief:
'Regardless of the fact that in the last two decades the United States has become a predominantly urban country where well over two-thirds of the population now lives in cities or suburbs, political representation in the majority of state legislatures is 50 or more years behind the times. Apportionments made when the greater part of the population was located in rural communities are still determining and undermining our elections.
'As a consequence, the municipality of 4960 is forced to function in a horse and buggy environment where there is little political recognition of the heavy demands of an urban population. These demands will become even greater by 1970 when some 150 million people will be living in urban areas.
'The National Institute of Municipal Law Officers has for many years recognized the wide-spread complaint that by far the greatest preponderance of state representatives and senators are from rural areas which, in the main, fail to become vitally interested in the increasing difficulties now facing urban administrators.
'Since World War II, the explosion in city and suburban population has created intense local problems in education, transportation, and housing. Adequate handling of these problems has not been possible to a large extent, due chiefly to the political weakness of municipalities. This situation is directly attributable to considerable under-representation of cities in the legislatures of most states.' Amicus brief, pp. 2—3.
5
The recent ruling by the Iowa Supreme Court that a legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act (City of Cedar Rapids v. Cox, 252 Iowa 948, 964, 108 N.W.2d 253, 262—263; cf. Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40) is plainly correct.
There need be no fear of a more disastrous collision between federal and state agencies here than where a federal court enjoins gerrymandering based on racial lines. See Gomillion v. Lightfoot, supra.
The District Court need not undertake a complete reapportionment. It might possibly achieve the goal of substantial equality merely by directing respondent to eliminate the egregious injustices. Or its conclusion that reapportionment should be made may in itself stimulate legislative action. That was the result in Asbury Park Press v. Woolley, 33 N.J. 1, 161 A.2d 705, where the state court ruled it had jurisdiction:
'If by reason of passage of time and changing conditions the reapportionment statute no longer serves its original purpose of securing to the voter the full constitutional value of his franchise, and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him. The lawmaking body cannot by inaction alter the constitutional system under which it has its own existence.' 33 N.J. at 14, 161 A.2d at 711. The court withheld its decision on the merits in order that the legislature might have an opportunity to consider adoption of a reapportionment act. For the sequel see Application of Lamb, 67 N.J.Super. 39, 46—47, 169 A.2d 822, 825—826.
Reapportionment was also the result in Magraw v. Donovan, D.C., 159 F.Supp. 901, where a federal three-judge District Court took jurisdiction, saying, D.C., 163 F.Supp. 184, 187:
'Here it is the unmistakable duty of the State Legislature to reapportion itself periodically in accordance with recent population changes. * * * Early in January 1959 the 61st Session of the Minnesota Legislature will convene, all of the members of which will be newly elected on November 4th of this year. The facts which have been presented to us will be available to them. It is not to be presumed that the Legislature will refuse to take such action as is necessary to comply with its duty under the State Constitution. We defer decision on all the issues presented (including that of the power of this Court to grant relief), in order to afford the Legislature full opportunity to 'heed the constitutional mandate to redistrict."
See, D.C., 177 F.Supp. 803, where the case was dismissed as moot, the State Legislature having acted.
1
The opinion stated at 551, 66 S.Ct., at 1199 that the Court 'could also dispose of this case on the authority of Wood v. Broom (287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131 (1932)).' Wood v. Broom involved only the interpretation of a congressional reapportionment Act.
2
Similarly, the Equal Protection Clause was not invoked in Tedesco v. Board of Supervisors, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1950).
3
I do not read the later case of Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 976, 91 L.Ed. 1262 (1947) as having rejected the equal protection argument adopted here. That was merely a dismissal of an appeal where the equal protection point was mentioned along with attacks under three other constitutional provisions, two congressional Acts, and three state constitutional provisions.
4
Georgia based its election system on a consistent combination of political units and population, giving six unit votes to the eight most populous counties, four unit votes to the 30 counties next in population, and two unit votes to each of the remaining counties.
5
See Part I of the Appendix to Mr. Justice HARLAN'S dissent, 369 U.S., p. 341, 82 S.Ct., p. 776.
6
It is suggested that the districting is not unconstitutional since it was established by a statute that was constitutional when passed some 60 years ago. But many Assembly Sessions since that time have deliberately refused to change the original act, and in any event '(a) statute (constitutionally) valid when enacted may become invalid by change in the conditions to which it is applied.' Nashville, C. & St. L.R. Co. v. Walters, 294 U.S. 405, 415, 55 S.Ct. 486, 488, 79 L.Ed. 949 (1935).
7
'Total representation' indicates the combined representation in the State Senate (33 members) and the State House of Representatives (99 members) in the Assembly of Tennessee. Assuming a county has one representative, it is credited in this calculation with 1/99. Likewise, if the same county has one-third of a senate seat, it is credited with another 1/99, and thus such a county, in our calculation, would have a 'total representation' of two; if a county has one representative and one-sixth of a senate seat, it is credited with 1.5/99, or 1.50. It is this last figure that I use here in an effort to make the comparisons clear. The 1950 rather than the 1960 census of voting population is used to avoid the charge that use of 1960 tabulations might not have allowed sufficient time for the State to act. However, the 1960 picture is even more irrational than the 1950 one.
8
Of course this was not the case in the Georgia county unit system, South v. Peters, supra, or the Illinois initiative plan, MacDougall v. Green, supra, where recognized political units having independent significance were given minimum political weight.
9
It is interesting to note that state judges often rest their decisions on the ground that this Court has precluded adjudication of the federal claim. See, e.g., Scholle v. Secretary of State, 360 Mich. 1, 104 N.W.2d 63 (1960).
10
Farrand, The Records of the Federal Convention of 1787, 124.
11
Kant, Perpetual Peace.
*
It is worth reminding that the problem of legislative apportionment is not one dividing North and South. Indeed, in the present House of Representatives, for example, Michigan's congressional districts are far less representative of the numbers of inhabitants, according to the 1960 census, than are Louisiana's. Michigan's Sixteenth District, which is 93.1% urban, contains 802,994 persons and its twelfth, which is 47.6% urban, contains 177,431—one-fifth as many persons. Louisiana's most populous district, the Sixth, is 53.6% urban and contains 536,029 persons, and its least populous, the Eighth, 36.7% urban, contains 263,850—nearly half. Gross disregard of any assumption that our political system implies even approximation to the notion that individual votes in the various districts within a State should have equal weight is as true, e.g., of California, Illinois, and Ohio as it is of Georgia. See United States Department of Commerce, Census Release, February 24, 1962, CB62—23.
1
See Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131; Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, rehearing denied, 329 U.S. 825, 67 S.Ct. 118, 91 L.Ed. 701, motion for reargument before the full bench denied, 329 U.S. 828, 67 S.Ct. 199, 91 L.Ed. 703; Cook v. Fortson, 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596, rehearing denied, 329 U.S. 829, 67 S.Ct. 296, 91 L.Ed. 704; Turman v. Duckworth, 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596, rehearing denied, 329 U.S. 829, 67 S.Ct. 296, 91 L.Ed. 704; Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262; MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3; South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834; Tedesco v. Board of Supervisors, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357; Remmey v. Smith, 342 U.S. 916, 72 S.Ct. 368, 96 L.Ed. 685; Cox v. Peters, 342 U.S. 936, 72 S.Ct. 559, 96 L.Ed. 697, rehearing denied, 343 U.S. 921, 72 S.Ct. 675, 96 L.Ed. 1334; Anderson v. Jordan, 343 U.S. 912, 72 S.Ct. 648, 96 L.Ed. 1328; Kidd v. McCanless, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157; Radford v. Gary, 352 U.S. 991, 77 S.Ct. 559, 1 L.Ed.2d 540; Hartsfield v. Sloan, 357 U.S. 916, 78 S.Ct. 1363, 2 L.Ed.2d 1363; Matthews v. Handley, 361 U.S. 127, 80 S.Ct. 256, 4 L.Ed.2d 180; Perry v. Folsom, 144 F.Supp. 874 (D.C.N.D.Ala.); Magraw v. Donovan, 163 F.Supp. 184 (D.C.D.Minn.); cf. Dyer v. Kazuhisa Abe, 138 F.Supp. 220 (D.C.D.Hawaii). And see Keogh v. Neely, 50 F.2d 685 (C.A.7th Cir.).
2
Although the motion to intervene by the Mayor of Nashville asserted an interest in the litigation in only a representative capacity, the complaint which he subsequently filed set forth that he was a qualified voter who also sued in his own behalf. The municipalities of Knoxville and Chattanooga purport to represent their residents. Since the claims of the municipal intervenors do not differ materially from those of the parties who sue as individual voters, the Court need not now determine whether the municipalities are proper parties to this proceeding. See, e.g., Stewart v. Kansas City, 239 U.S. 14, 36 S.Ct. 15, 60 L.Ed. 120.
3
The original complaint named as defendants Tennessee's Secretary of State, Attorney General, Coordinator of Elections, and the three members of the State Board of Elections, seeking to make the Board members representatives of all the State's County Election Commissioners. The prayer in an intervening complaint by The City of Knoxville, that the Commissioners of Elections of Knox County be added as parties defendant seems not to have been acted on by the court below. Defendants moved to dismiss, inter alia, on the ground of failure to join indispensable parties, and they argue in this Court that only the County Election Commissioners of the ninety-five counties are the effective administrators of Tennessee's elections laws, and that none of the defendants have substantial duties in connection therewith. The District Court deferred ruling on this ground of the motion. Inasmuch as it involves questions of local law more appropriately decided by judges sitting in Tennessee than by this Court, and since in any event the failure to join County Election Commissioners in this action looking to prospective relief could be corrected, if necessary, by amendment of the complaints, the issue does not concern the Court on this appeal.
4
Jurisdiction is predicated upon R.S. § 1979, 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, and 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3).
5
However, counties having two-thirds of the ratio required for a Representative are entitled to seat one member in the House, and there are certain geographical restrictions upon the formation of Senate districts. The applicable provisions of Article II of the Tennessee Constitution are:
'Sec. 4. Census.—An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years.'
'Sec. 5. Apportionment of representatives.—The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided that any county having two-thirds of the ratio shall be entitled to one member.'
'Sec. 6. Apportionment of senators.—The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district.'
6
It is alleged that certain amendments to the Act of 1901 made only minor modifications of that Act, adjusting the boundaries of individual districts in a manner not material to plaintiffs' claims.
7
The exhibits do not reveal the source of the population figures which they set forth, but it appears that the figures were taken from the United States Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 41, at 76—91. These census figures represent the total population over twenty-one years of age in each Tennessee County; they do not purport to enumerate 'qualified voters' or 'qualified electors,' the measure of apportionment prescribed by the Tennessee Constitution. See note 5, supra. To qualify to vote in Tennessee, in addition to fulfilling the age requirement, an individual must be a citizen of the United States, a resident of the State for twelve months and of the county where he offers his vote for six months next preceding the election, and must not be under the disqualification attaching to conviction for certain offenses. Tenn.Code Ann.1955, §§ 2—201, 2—205. The statistics found in the United States Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 42, at 92—97, suggest that the residence requirement, in particular, may be an unknown variable of considerable significance. Appellants do not suggest a means by which a court, on the basis of the federal census figures, can determine the number of qualified voters in the various Tennessee counties.
8
The 'county aid funds' derived from a portion of a state gasoline privilege tax, for example, are distributed among the counties as follows: one-half equally among the ninety-five counties, one-quarter on the basis of area, one-quarter on the basis of population, to be used by county authorities in the building, repairing and improving of county roads and bridges. Tenn.Code Ann.1955, § 54—403. Appellants urge that this distribution is discriminatory.
9
Plaintiffs also suggested, as an alternative to at-large elections, that the District Court might itself redistrict the State. They did not, however, expressly pray such relief.
10
See Bickel, Foreword: The Passive Virtues, 75 Harv.L.Rev. 40, 45 et seq. (1961).
11
See, e.g., United States v. Palmer, 3 Wheat. 610, 634, 635, 4 L.Ed. 471; The Divina Pastora, 4 Wheat. 52, 4 L.Ed. 512; Williams v. Suffolk Ins. Co., 13 Pet. 415, 10 L.Ed. 226; Kennett v. Chambers, 14 How. 38, 14 L.Ed. 316; Doe ex dem. Clark v. Braden, 16 How. 635, 14 L.Ed. 1090; Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691; Terlinden v. Ames, 184 U.S. 270, 22 S.Ct. 484, 46 L.Ed. 534; Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274; Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726; Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633. Compare Foster and Elam v. Neilson, 2 Pet. 253, 7 L.Ed. 415, with United States v. Arredondo, 6 Pet. 691, 8 L.Ed. 547. Of course, judgment concerning the 'political' nature of even a controversy affecting the Nation's foreign affairs is not a simple mechanical matter, and certain of the Court's decisions have accorded scant weight to the consideration of unity of action in the conduct of external relations. Compare Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76, with United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796.
12
Obviously, this is the equivalent of saying that the characteristics are not 'constitutionally requisite' in a judicially enforceable sense. The recognition of their necessity as a condition of legislation is left, as is observance of certain other constitutional commands to the conscience of the non-judicial organs. Cf. Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717.
13
Also compare the Coleman case and United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640, with Hawke v. Smith (No. 1), 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871. See the National Prohibition Cases, State of Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 588, 64 L.Ed. 946; and consider the Court's treatment of the several contentions in Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505.
14
E.g., Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987. The action for damages for improperly rejecting an elector's vote had been given by the English law since the time of Ashby v. White, 1 Brown's Cases in Parliament 62; 2 Ld.Raym. 938; 3 Ld.Raym. 320, a case which in its own day precipitated an intraparliamentary war of major dimensions. See 6 Hansard, Parliamentary History of England (1810), 225—324, 376—436. Prior to the racial-discrimination cases, this Court had recognized the action, by implication, in dictum in Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005, and Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84, both respecting federal elections.
15
Cf. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110.
16
By statute an action for preventive relief is now given the United States in certain voting cases. 71 Stat. 637, 42 U.S.C. § 1971(c), 42 U.S.C.A. § 1971(c), amending R.S. § 2004. See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524; United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535.
17
Compare Rhode Island v. Massachusetts, 12 Pet. 657, 9 L.Ed. 1233, and cases following, with Georgia v. Stanton, 6 Wall. 50, 18 L.Ed. 721.
18
Compare Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483, with Cherokee Nation v. Georgia, 5 Pet. 1, 20, 28 (Mr. Justice Johnson, concurring), 51 and 75, 8 L.Ed. 25 (Mr. Justice Thompson, dissenting).
19
This was an alternative ground of Chief Justice Marshall's opinion for the Court. Id., at 20. The question which Marshall reserved as 'unnecessary to decide,' ibid., was not the justiciability of the bill in this aspect, but the 'more doubtful' question whether that 'part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession,' might be entertained. Ibid. Mr. Justice Johnson, concurring, found the controversy non-justiciable and would have put the ruling solely on this ground, id., at 28, and Mr. Justice Thompson, in dissent, agreed that much of the matter in the bill was not fit for judicial determination. Id., at 51, 75.
20
Cf. Mississippi v. Johnson, 4 Wall. 475, 18 L.Ed. 437.
21
Considerations similar to those which determined the Cherokee Nation case and Georgia v. Stanton no doubt explain the celebrated decision in Nabob of the Carnatic v. East India Co., 1 Ves.Jr. *371; 2 Ves.Jr. *56, rather than any attribution of a portion of British sovereignty, in respect of Indian affairs, to the company. The reluctance of the English Judges to involve themselves in contests of factional political power is of ancient standing. In The Duke of York's Claim to the Crown, 5 Rotuli Parl. 375, printed in Wambaugh, Cases on Constitutional Law (1915), 1, the role which the Judges were asked to play appears to have been rather that of advocates than of judges, but the answer which they returned to the Lords relied on reasons equally applicable to either role.
22
'The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.'
23
Cf. the cases holding that the Fourteenth Amendment imposes no such restriction upon the form of a State's governmental organization as will permit persons affected by government action to complain that in its organization principles of separation of powers have been violated. E.g., Dryer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; Soliah v. Heskin, 222 U.S. 522, 32 S.Ct. 103, 56 L.Ed. 294; Houck v. Little River Drainage District, 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266. The same consistent refusal of this Court to find that the Federal Constitution restricts state power to design the structure of state political institutions is reflected in the cases rejecting claims arising out of the States' creation, alteration, or destruction of local subdivisions or their powers, insofar as these claims are made by the subdivisions themselves, see Laramie County Com'rs v. Albany County, 92 U.S. 307, 23 L.Ed. 552; Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394, 39 S.Ct. 526, 63 L.Ed. 1054; Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937; Risty v. Chicago, R.I. & P.R. Co., 270 U.S. 378, 389 390, 46 S.Ct. 236, 241, 70 L.Ed. 641; Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015, or by the whole body of their residents who share only a general, undifferentiated interest in their preservation. See Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151. The policy is also given effect by the denial of 'standing' to persons seeking to challenge state action as infringing the interest of some separate unit within the State's administrative structure—a denial which precludes the arbitrament by federal courts of what are only disputes over the local allocation of government functions and powers. See, e.g., Smith v. Indiana, 191 U.S. 138, 24 S.Ct. 51, 48 L.Ed. 125; Braxton County Court v. West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450; Marshall v. Dye, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206; Stewart v. Kansas City, 239 U.S. 14, 36 S.Ct. 15, 60 L.Ed. 120.
24
223 U.S., at 141, 32 S.Ct. at 227. '* * * (T)he contention, if held to be sound, would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in Oregon since the adoption of the initiative and referendum. And indeed, the propositions go further than this, since in their essence they assert that there is no governmental function, legislative or judicial, in Oregon, because it cannot be assumed, if the proposition be well founded, that there is, at one and the same time, one and the same government which is republican in form, and not of that character.' Compare Luther v. Borden, 7 How, 1, 38—39, 12 L.Ed. 581:
'* * * For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned,—if it had been annulled by the adoption of the opposing government,—then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals.
'When the decision of this court might lead to such results, it becomes it duty to examine very carefully its own powers before it undertakes to exercise jurisdiction.'
25
See Bowen, The Recent Contest in Rhode Island (1844); Frieze, A Concise History of the Efforts to Obtain an Extension of Suffrage in Rhode Island; From the Year 1811 to 1842 (2d ed. 1842); Mowry, The Dorr War (1901); Wayland, The Affairs of Rhode Island (2d ed. 1842).
26
The Court reasoned, with respect to the guarantee against domestic violence also contained in Art. IV, § 4, that this, too, was an authority committed solely to Congress; that Congress had emplowered the President, not the courts, to enforce it; and that it was inconceivable that the courts should assume a power to make determinations in the premises which might conflict with those of the Executive. It noted further that, in fact, the President had recognized the governor of the charter government as the lawful authority in Rhode Island, although it had been unnecessary to call out the militia in his support.
27
See note 24, supra.
28
Id., at 39, 46—47.
29
Id., at 41—42.
30
In evaluating the Court's determination not to inquire into the authority of the charter government, it must be remembered that, throughout the country, Dorr 'had received the sympathy of the Democratic press. His cause, therefore, became distinctly a party issue.' 2 Warren, The Supreme Court in United States History (Rev. ed. 1937), 186.
31
Appellants also allege discrimination in the legislature's allocation of certain tax burdens and benefits. Whether or not such discrimination would violate the Equal Protection Clause if the tax statutes were challenged in a proper proceeding, see Dane v. Jackson, 256 U.S. 589, 41 S.Ct. 566, 65 L.Ed. 1107; cf. Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 268, 53 S.Ct. 345, 350, 77 L.Ed. 730, these recitative allegations do not affect the nature of the controversy which appellants' complaints present.
32
Appellants would find a 'right' to have one's ballot counted on authority of United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341. All that these cases hold is that conspiracies to commit certain sharp election practices which, in a federal election, cause ballots not to receive the weight which the law has in fact given them, may amount to deprivations of the constitutionally secured right to vote for federal officers. But see United States v. Bathgate, 246 U.S. 220, 38 S.Ct. 269, 62 L.Ed. 676. The cases do not so much as suggest that there exists a constitutional limitation upon the relative weight to which the law might properly entitle respective ballots, even in federal elections.
33
Mackenzie, Free Elections (1958) (hereafter, Mackenzie), 108.
34
Ogg, English Government and Politics (2d ed. 1936) (hereafter Ogg), 248—250, 257; Seymour, Electoral Reform in England and Wales (1915) (hereafter, Seymour), 46—47.
35
Ogg 257—259; Seymour 45—52; Carpenter, The Development of American Political Thought (1930) (hereafter, Carpenter), 45—46.
36
Ogg 258.
37
Seymour 51.
38
The Federalist, No. 56 (Wright ed. 1961), at 382. Compare Seymour 49. This takes account of the restricted franchise as well as the effect of the localunit apportionment principle.
39
Seymour 52—76.
40
Ogg 264—265; Seymour 318—319.
41
For these and other instances of gross inequality, see Seymour 320—325.
42
Seymour 333—346; Ogg 265.
43
Seymour 349, 490—491.
44
Seymour 489—518.
45
Mackenzie 108; see also Seymour 513—517.
46
Ogg 270.
47
Ogg 253.
48
Ogg 270—271.
49
Ogg 273—274.
50
7 & 8 Geo. VI, c. 41. The 1944 Act was amended by the House of Commons (Redistribution of Seats) Act, 1947, 10 & 11 Geo. VI, c. 10, and the two, with other provisions, were consolidated in the House of Commons (Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, since amended by the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26.
51
See generally Butler, The Redistribution of Seats, 33 Public Administration 125 (1955).
52
See note 50, supra. However, Commissions are given discretion to depart from the strict application of the local boundary rule to avoid excessive disparities between the electorate of a constituency and the electoral quota, or between the electorate of a constituency and that of neighboring constituencies. For detailed discussion, see Craig, Parliament and Boundary Commissions, (1959) Public Law 23. See also Butler, supra, note 51, at 127.
53
Mackenzie 108, 113.
54
The Times, Dec. 15, 1954, p. 4, cols. 3—4.
55
(1955) 1 Ch. 238.
56
The court reserved the question whether a judicial remedy might be found in a case in which it appeared that a Commission had manifestly acted in complete disregard of the Acts.
57
Note 50, supra.
58
First Periodical Report of the Boundary Commission for England (Cmd. 9311) (1954), 4, par. 19.
59
Under the 1949 Act, see note 50, supra, the intervals between reports were to be not less than three nor more than seven years with certain qualifications. The 1958 Act raised the minimum to ten and the maximum to fifteen years.
60
First Periodical Report, supra, note 58, at 4, par. 20.
61
582 H.C.Deb. (5th ser. 1957—1958), 230.
62
See The Federalistic, No. 56, supra, note 38; Tudor, Life of James Otis (1823), 188—190.
63
Griffith, The Rise and Development of the Gerrymander (1907) (hereafter, Griffith), 23—24.
64
Luce, Legislative Principles (1930) (hereafter, Luce), 336—342.
65
Griffith 25.
66
Griffith 15—16, n. 1.
67
Griffith 28.
68
Carpenter 48—49, 54; Griffith 26, 28—29; Luce 339—340.
69
Carpenter 87; Griffith 26—29, 31.
70
II Farrand, Records of the Federal Convention (1911), 241.
71
The power was provided. Art. I, § 4, cl. 1.
72
III Elliot's Debates (2d ed. 1891), 367; II id., at 50 51.
73
See Madison, in I Farrand, op. cit., supra, note 70, at 321: 'The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable.'
74
See The Federalist, No. 62 (Wright ed. 1961), at 408—409.
75
See The Federalist, No. 54, id., at 369—374.
76
Carpenter 130.
77
Jefferson, Notes on the State of Virginia (Peden ed. 1955), 118—119. See also II Writings of Thomas Jefferson (Memorial ed. 1903), 160—162.
78
Carpenter 139—140.
79
Griffith 102—104.
80
Griffith 104—105.
81
Luce 343—350. Bowen, supra, note 25, at 17—18, records that in 1824 Providence County, having three-fifths of Rhode Island's population, elected only twenty-two of its seventy-two representatives, and that the town of Providence, more than double the size of Newport, had half Newport's number of representatives.
82
Carpenter 130—137; Luce 364—367; Griffith 116—117.
83
See 14 Stat. 428; 15 Stat. 2, 14, 41.
84
Various indices of population were employed among the States which took account of the factor of numbers. Some counted all inhabitants, e.g., N.J.Const.1844, Art. IV, § 3; some, only white inhabitants, e.g., Ill.Const.1848, Art. III, § 8; some, male inhabitants over twenty-one, e.g., Ind.Const.1851, Art. IV, §§ 4 5; some, qualified voters, e.g., Tenn.Const.1834, Art. II, §§ 4 to 6; some excluded aliens, e.g., N.Y.Const.1846, Art. III, §§ 4, 5 (and untaxed persons of color); some excluded untaxed Indians and military personnel, e.g., Neb.Const.1866—1867, Art. II, § 3. For present purposes these differences, although not unimportant as revealing fundamental divergences in representation theory, will be disregarded.
85
Ore.Const.1857, Art. IV, §§ 5, 6, 7; Ill.Const.1848, Art. III, §§ 8, 9; Ind.Const.1851, Art. IV, §§ 4, 5, 6; Minn.Const.1857, Art. IV, § 2; Wis.Const.1848, Art. IV, §§ 3 to 5; Mass.Const.1780, Amends. XXI, XXII; Neb.Const.1866—1867, Art. II, § 3. All of these but Minnesota made provision for periodic reapportionment. Nevada's Constitution of 1864, Art. XV, § 13, provided that the federal censuses and interim state decennial enumerations should serve as the bases of representation for both houses, but did not expressly require either numerical equality or reapportionment at fixed intervals.
Several of these constitutions contain provisions which forbid splitting counties or which otherwise require recognition of local boundaries. See, e.g., the severe restriction in Ill.Const.1848, Art. III, § 9. Such provisions will almost inevitably produce numerical inequalities. See, for example, University of Oklahoma, Bureau of Government Research, Legislative Apportionment in Oklahoma (1956), 21—23. However, because their effect in this regard will turn on idiosyncratic local factors, and because other constitutional provisions are a more significant source of inequality, these provisions are here disregarded.
86
Tenn.Const.1834, Art. II, §§ 4 to 6 (two-thirds of a ratio entitles a county to one representative in the House); W.Va.Const.1861—1863, Art. IV, §§ 4, 5, 7, 8, 9 (one-half of a ratio entitles a county to one representative in the House); Mich.Const.1850, Art. IV, §§ 2 to 4 (one-half of a ratio entitles each county thereafter organized to one representative in the House). In Oregon and Iowa a major-fraction rule applied which gave a House seat not only to counties having a moiety of a single ratio, but to all counties having more than half a ratio in excess of the multiple of a ratio. Ore.Const.1857, Art. IV, § 6, note 85, supra; Iowa Const.1857, Art. III, §§ 33, 34, 35, 37, note 89, infra.
87
See Bone, States Attempting to Comply with Reapportionment Requirements, 17 Law & Contemp.Prob. 387, 391 (1952).
88
It also appears, although the section is not altogether clear, that the provisions of West Virginia's Constitution controlling apportionment of senators would operate in favor of the State's less populous regions by limiting any single county to a maximum of two senators. W.Va.Const.1861—1863, Art. IV, § 4.
89
Iowa Const.1857, Art. III, §§ 33, 34, 35, 37.
90
N.Y.Const.1846, Art. III, §§ 4, 5 (except Hamilton County); Kan.Const.1859, Art. 2, § 2; Art. 10. The Kansas provisions require periodic apportionment based on censuses, but do not in terms demand equal districts.
91
Ohio Const.1851, Art. XI, §§ 1 to 5. See Art. XI, §§ 6 to 9 for Senate apportionment.
92
Me.Const.1819, Art. IV, Pt. First, §§ 2, 3. See Art. IV, Pt. Second, § 2, for Senate apportionment based on numbers.
93
Mo.Const.1865, Art. IV, §§ 2, 7, 8. See Art. IV, §§ 4 to 8 for Senate apportionment based on numbers.
94
Towns smaller than one hundred and fifty, if so situated that it was 'very inconvenient' to join them to other towns for voting purposes, might be permitted by the legislature to send a representative.
95
N.H.Const.1792, Pt. Second, §§ IV to XI; Pt. Second, § XXVI.
96
Pa.Const.1838, as amended, Art. I, §§ 4, 6, 7.
97
Conn.Const.1818, Art. Third, § 3.
98
Vt.Const.1793, c. II, § 7.
99
R.I.Const.1842, Art. VI, § 1.
100
N.J.Const.1844, Art. IV, § 2, cl. 1.
101
Conn.Const.1818, Amend. II.
102
Vt.Const.1793, Amend. 23.
103
N.J.Const.1844, Art. IV, § 3, cl. 1.
104
R.I.Const.1842, Art. V, § 1.
105
Ark.Const.1868, Art. V, §§ 8, 9; Va.Const.1864, Art. IV, § 6 (this constitution was in effect when Virginia ratified the Fourteenth Amendment); Va.Const.1870, Art. V, § 4 (this was Virginia's Reconstruction-Act convention constitution); Miss.Const.1868, Art. IV, §§ 33 to 35; Tex.Const.1868, Art. III, §§ 11, 34. The Virginia Constitutions and Texas' provisions for apportioning its lower chamber do not in terms require equality of numbers, although they call for reapportionment following a census. In Arkansas, the legislature was authorized, but not commanded, to reapportion periodically; it is not clear that equality was required.
106
N.C.Const.1868, Art. II, §§ 6, 7. See Art. II, § 5, for Senate apportionment based on numbers.
107
S.C.Const.1868, Art. I, § 34; Art. II, §§ 4 to 6.
108
La.Const.1868, Tit. II, Arts. 20, 21. See Tit. II, Arts. 28 to 30, for Senate apportionment based on numbers.
109
Ala.Const.1867, Art. VIII, § 1. See Art. VIII, § 3, for Senate apportionment based on numbers.
110
S.C.Const.1868, Art. II, § 8.
111
Fla.Const.1868, Art. XIV, par. 1. See Art. XIV, par. 2, for Senate apportionment.
112
Ga.Const.1868, Art. III, § 2. The extent of legislative authority to alter these districts is unclear, but it appears that the structure of three contiguous counties for each of forty-four districts is meant to be permanent.
113
Ga.Const.1868, Art. III, § 3. The extent of legislative authority to alter the apportionment is unclear, but it appears that the three-tiered structure is meant to be permanent.
114
See, e.g., Durfee, Apportionment of Representation in the Legislature: A Study of State Constitutions, 43 Mich.L.Rev. 1091, 1097 (1945); Short, States That Have Not Met Their Constitutional Requirements, 17 Law & Contemp.Prob. 377 (1952); Harvey, Reapportionments of State Legislatures—Legal Requirements, 17 Law & Contemp.Prob. 364, 370 (1952). For an excellent case study of numerical inequalities deriving solely from a one-member-per-county minimum provision in Ohio, see Aumann, Rural Ohio Hangs On, 46 Nat.Mun.Rev. 189, 191—192 (1957).
115
Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571, 574 (1955). (This is the effect of a later Georgia constitutional provision, Ga.Const.1945, § 2—1501, art. 3, § 3, par. 1, substantially similar to that of 1868.) The same three-tiered system has subsequently been adopted in Florida, Fla.Const.1885, Art. VII, §§ 3, 4, where its effects have been inequalities of the order of eighty to one. Dauer and Kelsay, supra, at 575, 587.
116
The constitutions discussed are those under which the new States entered the Union.
117
Colo.Const.1876, Art. V, §§ 45, 47; N.D.Const.1889, Art. 2, §§ 29, 35; S.D.Const.1889, Art. III § 5; Wash.Const.1889, Art. II, §§ 3, 6; Utah Const.1895, Art. IX, §§ 2, 4; N.M.Const.1911, Art. IV, following § 41. The Colorado and Utah Constitutions provide for reapportionment 'according to ratios to be fixed by law' after periodic census and enumeration. In New Mexico the legislature is authorized, but not commanded, to reapportion periodically. North Dakota does not in terms demand equality in House representation; members are to be assigned among the several senatorial districts, which are of equal population.
118
Wyo.Const.1889, Art. III, Legislative Department, § 3; Art. III, Apportionment, §§ 2, 3.
119
Idaho Const.1889, Art. III, § 4.
120
Okl.Const.1907, Art. V, § 10(b) to (j). See Art. V, §§ 9(a), 9(b) for Senate apportionment based on numbers.
121
Mont.Const.1889, Art. VI, §§ 2, 3.
122
Mont.Const.1889, Art. V, § 4; Art. VI, § 4. The effective provisions are, first, that there shall be no more than one senator from each county, and, second, that no senatorial district shall consist of more than one county.
123
Alaska Const.1956, Art. VI, § 7; Art. XIV, § 2. The exact boundaries of the districts may be modified to conform to changes in House districts, but their numbers of senators and their approximate perimeters are to be preserved.
124
Hawaii Const.1950, Art. III, § 2.
125
Alaska Const.1956, Art. VI, §§ 3, 4, 6. The method of equal proportions is used.
126
Hawaii Const.1950, Art. III, § 4. The method of equal proportions is used, and, for sub-apportionment within the four 'basic' areas, a form of moiety rule obtains.
127
Ariz.Const.1910, Art. IV, Pt. 2, § 1, A.R.S. On the basis of 1910 census figures, this apportionment yielded, for example, a senatorial-ratio differential of more than four to one between Mohave and Cochise or between Mohave and Maricopa Counties. II Thirteenth Census of the United States (1910), 71—73.
128
The pertinent state constitutional provisions are set forth in tabular form in XIII Book of the States (1960—1961), 54 58; and Greenfield, Ford and Emery, Legislative Reapportionment: California in National Perspective (University of California, Berkeley, 1959), 81—85. An earlier treatment now outdated in several respects but still useful is Durfee, supra, note 114. See discussions in Harvey, supra, note 114; Shull, Political and Partisan Implications of State Legislative Apportionment, 17 Law & Contemp.Prob. 417, 418—421 (1952).
129
Nebraska's unicameral legislature is included in this count.
130
Greenfield, Ford and Emery, supra, note 128, at 7.
131
Harvey, supra, note 114, at 367. See Tabor, The Gerrymandering of State and Federal Legislative Districts, 16 Md.L.Rev. 277, 282—283 (1956).
132
See, e.g., Mather and Ray, The Iowa Senatorial Districts Can Be Reapportioned—A Possible Plan, 39 Iowa L.Rev. 535, 536—537 (1954).
133
See, e.g., Walter, Reapportionment and Urban Representation, 195 Annals of the American Academy of Political and Social Science 11, 12—13 (1938); Bone, supra, note 87. Legislative inaction and state constitutional provisions rejecting the principle of equal numbers have both contributed to the generally prevailing numerical inequality of representation in this country. Compare Walter, supra, with Baker One Vote, One Value, 47 Nat.Mun.Rev. 16, 18 (1958).
134
See, e.g., Griffith 116—117; Luce 364—367, 370; Merriam, American Political Ideas (1929), 244—245; Legislation, Apportionment of the New York State Senate, 31 St. John's L.Rev. 335, 341—342 (1957).
135
In 1947, the Boundary Commission for England, '* * * impressed by the advantages of accessibility (that large compact urban regions) * * * enjoy over widely scattered rural areas * * * came to the conclusion that they could conveniently support electorates in excess of the electoral quota, and would in the majority of cases prefer to do so rather than suffer severance of local unity for parliamentary purposes'—that 'in general urban constituencies could more conveniently support large electorates than rural constituencies * * *.' Initial Report of the Boundary Commission for England (Cmd. 7260) (1947), 5. See also Mackenzie 110—111; De Grazia, General Theory of Apportionment, 17 Law & Contemp.Prob. 256, 261—262 (1952).
136
See Walter, supra, note 133; Walter, Reapportionment of State Legislative Districts, 37 Ill.L.Rev. 20, 37—38 (1942). The urban-rural conflict is often the core of apportionment controversy. See Durfee, supra, note 114, at 1093—1094; Short, supra, note 114, at 381.
137
Baker, Rural Versus Urban Political Power (1955), 11—19; MacNeil, Urban Representation in State Legislatures, 18 State Government 59 (1945); United States Conference of Mayors, Government Of the People, By the People, For the People (ca. 1947).
138
See, in addition to the authorities cited in notes 130, 131, 136 and 137, supra, and 140 to 144, infra, (all containing other examples than those remarked in text), Hurst, The Growth of American Law, The Law Makers (1950), 41—42; American Political Science Assn., Committee on American Legislatures, American State Legislatures (Zeller ed. 1954) 34—35; Gosnell, Democracy, The Threshold of Freedom (1948), 179—181; Lewis, Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057, 1059 1064 (1958); Friedman, Reapportionment Myth, 49 Nat.Civ.Rev. 184, 185—186 (1960); 106 Cong.Rec. 14901—14916 (remarks of Senator Clark and supporting materials); H.R.Rep. No. 2533, 85th Cong., 2d Sess. 24; H.R.Dec. No. 198, 84th Cong., 1st Sess. 38—40; Hadwiger, Representation in the Missouri General Assembly, 24 Mo.L.Rev. 178, 180—181 (1959); Hamilton, Beardsley and Coats, Legislative Reapportionment in Indiana: Some observations and a Suggestion, 35 Notre Dame Law, 368—370 (1960); Corter, Pennsylvania Ponders Apportionment, 32 Temple L.Q. 279, 283—288 (1959). Concerning the classical gerrymander, see Griffith, passim; Luce 395—404; Brooks, Political Parties and Electoral Problems (3d ed. 1933), 472—481. For foreign examples of numerical disproportion, see Hogan, Election and Representation (1945), 95; Finer, Theory and Practice of Modern Government (Rev. ed. 1949), 551—552.
139
Baker, supra, note 137, at 11. Recent New Jersey legislation provides for reapportionment of the State's lower House by executive action following each United States census subsequent to that of 1960. N.J.Laws 1961, c. 1, N.J.S.A. 52:10—3 et seq. The apportionment is to be made on the basis of population, save that each county is assured at least one House seat. In the State's Senate, however, by constitutional command, each county elects a single senator, regardless of population. N.J.Const.1947, Art. IV, § II, par. 1, N.J.S.A.
140
Note, 42 Minn.L.Rev. 617, 618—619 (1958).
141
Greenfield, Ford and Emery, supra, note 128, at 3.
142
University of Oklahoma, Bureau of Government Research, The Apportionment Problem in Oklahoma (1959), 16—29.
143
1 Labor's Economic Rev. 89, 96 (1956).
144
Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571, 572, 574 (1955).
145
See the Second Schedule to the House of Commons (Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, as amended by the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26, § 2, and the English experience described in text at notes 50 to 61, supra. See also the Report of the Assembly Interim Committee on Elections and Reapportionment, California Assembly (1951) (hereafter, California Committee Report), 37: 'The geographic—the socio-economic—the desires of the people—the desires of the elected officeholders—the desires of political parties—all these can and do legitimately operate not only within the framework of the 'relatively equal in population districts' factor, but also within the factors of contiguity and compactness. The county and Assembly line legal restrictions operate outside the framework of theoretically 'equal in population districts.' All the factors might conceivably have the same weight in one situation; in another, some factors might be considerably more important than others in making the final determination.' A Virginia legislative committee adverted to '* * * many difficulties such as natural topographical barriers, divergent business and social interests, lack of communication by rail or highway, and disinclinations of communities to breaking up political ties of long standing, resulting in some cases of districts requesting to remain with populations more than their averages rather than have their equal representation with the changed conditions.' Report of the Joint Committee on the Re-apportionment of the State into Senatorial and House Districts, Virginia General Assembly, House of Delegates, H.Doc. No. 9 (1922), 1—2. And the Tennessee State Planning Commission, concerning the problem of congressional redistricting in 1950, spoke of a 'tradition (which) relates to the sense of belonging loyalties to groups and items of common interest with friends and fellow citizens of like circumstance, environment or region.' Tennessee State Planning Commission, Pub. No. 222, Redistricting for Congress (1950), first page.
146
See, e.g., California Committee Report, at 52.
'* * * (T)he reapportionment process is, by its very nature, political * * *. There will be politics in reapportionment as long as a representative form of government exists * * *.
'It is impossible to draw a district boundary line without that line's having some political significance * * *.'
147
See, e.g., Celler, Congressional Apportionment—Past, Present, and Future, 17 Law & Contemp.Prob. 268 (1952), speaking of the history of congressional apportionment:
'* * * A mere reading of the debates (from the Constitutional Convention down to contemporary Congresses) on this question of apportionment reveals the conflicting interests of the large and small states and the extent to which partisan politics permeates the entire problem.'
148
See Standards for Congressional Districts (Apportionment), Hearings before Subcommittee No. 2 of the Committee on the Judiciary, House of Representatives, 86th Cong., 1st Sess. 23, concerning a proposed provision for judicial enforcement of certain standards in the laying out of districts:
'Mr. KASEM. You do not think that that (a provision embodying the language: 'in as compact form as practicable') might result in a decision depending upon the political inclinations of the judge?
'Mr. CELLER. Are you impugning the integrity of our Federal judiciary?
'Mr. KASEM. No; I just recognize their human frailties.'
For an instance of a court torn, in fact or fancy, over the political issues involved in reapportionment, see State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017, and especially the dissenting opinion of Higbee, J., 290 Mo., at 613, 235 S.W., at 1037.
149
See text at notes 139—143, supra.
150
Decisions of state courts which have entertained apportionment cases under their respective state constitutions do not, of course, involve the very different considerations relevant to federal judicial intervention. State-court adjudication does not involve the delicate problems of federal-state relations which would inhere in the exercise of federal judicial power to impose restrictions upon the States' shaping of their own governmental institutions. Moreover, state constitutions generally speak with a specificity totally lacking in attempted utilization of the generalities of the Fourteenth Amendment to apportionment matters. Some expressly commit apportionment to state judicial review, see, e.g., N.Y.Const.1938, Art. III, § 5, and even where they do not, they do precisely fix the criteria for judicial judgment respecting the allocation of representative strength within the electorate. See, e.g., Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 161 A.2d 705.
151
Appellants' suggestion that, although no relief may need be given, jurisdiction ought to be retained as a 'spur' to legislative action does not merit discussion.
152
See note 24, supra.
1
The relevant provisions of the Tennessee Constitution are Art. II, §§ 5 and 6:
'Sec. 5. Apportionment of representatives.—The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided that any county having two-thirds of the ratio shall be entitled to one member.
'Sec. 6. Apportionment of senators.—The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no counties shall be divided in forming a district.'
2
This formula is not clearly spelled out in the opinion, but it is necessarily inferred from the figures that are presented. Knox County, for example, is said to have a 'total representation' of 7.25. It elects (1) three direct representatives (value 3.00); (2) one representative from a two-county district (value .50); (3) one direct senator (value 3.00); and (4) one senator in a four-county district (value .75). See Appendix to opinion of MR. JUSTICE CLARK, 369 U.S., pp. 262 264, 82 S.Ct., pp. 734—736.
3
If this 'adjusted' formula for measuring 'total representation' is applied to the other 'horribles' cited in the concurring opinion (369 U.S., p. 255, 82 S.Ct., pp. 730, 731), it reveals that these counties—which purportedly have equal 'total representation' but distinctly unequal voting population—do not have the same 'total representation' at all. Rather than having the same representation as Rutherford County, Moore County has only about 40% of what Rutherford has. Decatur County has only 55% of the representation of Carter County. While Loudon and Anderson Counties are substantially underrepresented, this is because of their proximity to Knox County, which outweighs their votes in the Sixth Senatorial District and in the Eighth Floterial District.
4
These disparities are as serious, if not more so, when my Brother CLARK'S formula is applied to the appellants' proposal. For example, if the seven counties chosen by him as illustrative are examined as they would be represented under the appellants' distribution, Moore County, with a voting population of 2,340, is given more electoral strength than Decatur County, with a voting population of 5,563. Carter County (voting population 23,302) has 20% more 'total representation' that Anderson County (voting population 33,990), and 33% more than Rutherford County (voting population 25,316).
5
Murfreesboro, Rutherford County (pop. 16,017); Elizabethton, Carter County (pop. 10,754); Oak Ridge, Anderson County (pop. 27,387). Tennessee Blue Book, 1960, pp. 143—149.
6
For example, Carter and Washington Counties are each approximately 60% as large as Maury and Madison Counties in terms of square miles, and this may explain the disparity between their 'total representation' figures.
7
For example, in addition to being 'semi-urban,' Blount County is the location of the City of Alcoa, where the Aluminum Company of America has located a large aluminum smelting and rolling plant. This may explain the difference between its 'total representation' and that of Gibson County, which has no such large industry and contains no municipality as large as Maryville.
8
For example, Chester County (voting population 6,391) is one of those that is presently said to be overrepresented. But under the appellants' proposal, Chester would be combined with populous Madison County in a 'floterial district' and with four others, including Shelby County, in a senatorial district. Consequently, its total representation according to the Appendix to my Brother CLARK'S opinion would be .19. (369 U.S., p. 262, 82 S.Ct., p. 734.) This would have the effect of disenfranchising all the county's voters. Similarly, Rhea County's almost 9,000 voters would find their voting strength so diluted as to be practically nonexistent.
9
For example, it is primarily the eastern portion of the State that is complaining of malapportionment (along with the Cities of Memphis and Nashville). But the eastern section is where industry is principally located and where population density, even outside the large urban areas, is highest. Consequently, if Tennessee is apportioning in favor of its agricultural interests, as constitutionally it was entitled to do, it would necessarily reduce representation from the east.
10
For example, sound political reasons surely justify limiting the legislative chambers to workable numbers; in Tennessee, the House is set at 99 and the Senate at 33. It might have been deemed desirable, therefore, to set a ceiling on representation from any single county so as not to deprive others of individual representation. The proportional discrepancies among the four counties with large urban centers may be attributable to a conscious policy of limiting representation in this manner.
11
For example, Moore County is surrounded by four counties each of which has sufficient voting population to exceed two-thirds of the average voting population per county (which is the standard prescribed by the Tennessee Constitution for the assignment of a direct representative), thus qualifying for direct representatives. Consequently Moore County must be assigned a representative of its own despite its small voting population because it cannot be joined with any of its neighbors in a multicounty district, and the Tennessee Constitution prohibits combining it with nonadjacent counties. See note 1, supra.
| 12
|
369 U.S. 367
82 S.Ct. 787
7 L.Ed.2d 809
Dean RUSK, Secretary of State, Appellant,v.Joseph Henry CORT.
No. 20.
Argued Oct. 11, 1961.
Decided April 2, 1962.
Oscar H. Davis, Washington, D.C., for the appellant.
Leonard B. Boudin, New York City, for the appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 349(a)(10) of the Immigration and Nationality Act of 1952 provides:
2
'From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by—
3
'(10) departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States. For the purposes of this paragraph failure to comply with any provision of any compulsory service laws of the United States shall raise the presumption that the departure from or absence from the United States was for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States.'1
4
The appellee, Joseph Cort, is a physician and research physiologist. He was born in Massachusetts in 1927. In May of 1951 he registered with his Selective Service Board under the so-called 'Doctors' Draft Act.'2 A few days later he left the United States for Cambridge, England. In 1953, while still in England, he was repeatedly notified by his draft board to report for a physical examination either in the United States or at an examining facility in Europe. He disregarded these communications, and in September of 1953 his draft board ordered him to report to Brookline, Massachusetts, for induction into the Armed Forces. He failed to report as directed and remained in England. In 1954 an indictment charging him with draft evasion was returned in the United States District Court for the District of Massachusetts. Earlier that year, after the British Home Office had refused to renew his residence permit, Cort had gone to Prague, Czechoslovakia. He has been there ever since.
5
In 1959 Cort applied to our Embassy in Prague for a United States passport, his original passport having long since expired. His application was denied by the Passport Office of the Department of State on the ground that he had lost his citizenship under § 349(a)(10) of the 1952 Act by remaining outside the United States for the purpose of avoiding military service. Subsequently, the State Department's Board of Review on Loss of Nationality affirmed the decision of the Passport Office, on the same ground.
6
Cort then instituted the present action against the Secretary of State in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief. His complaint alleged that he had not remained abroad to evade his military obligations, and that § 349(a)(10) was in any event unconstitutional. A three-judge court was convened. The Secretary of State moved to dismiss the action upon the ground that § 360(b) and (c) of the Immigration and Nationality Act of 1952 provide the exclusive procedure under which Cort could attack the administrative determination that he was not a citizen. The District Court rejucted this contention, holding that it had jurisdiction of the action for a declaratory judgment and an injunction. On motions for summary judgment, the court determined that the appellee had remained abroad to avoid service in the Armed Forces. Relying upon Trop v. Dulles,3 the court held, however, that § 349(a)(10) was unconstitutional, and that consequently the appellee's citizenship had not been divested. The court accordingly entered a judgment declaring the appellee to be a citizen of the United States and enjoining the Secretary of State from denying him a passport on the ground that he is not a citizen. Cort v. Herter, D.C., 187 F.Supp. 683. This is a direct appeal from that judgment.
7
The only question we decide today is whether the District Court was correct in holding that it had jurisdiction to entertain this action for declaratory and injunctive relief. If not, we must vacate the judgment and direct the District Court to dismiss the complaint.4
8
In support of its jurisdiction the District Court relied upon the Declaratory Judgments Act and the Administrative Procedure Act. 187 F.Supp. at 685. The Declaratory Judgments Act, 48 Stat. 955, as amended, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, provides:
9
'In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, 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, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.'
10
Section 10 of the Administrative Procedure Act provides:
11
'Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion—
12
'(a) RIGHT OF REVIEW.—Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.
13
'(b) FORM AND VENUE OF ACTION.—The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law.' 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009.
14
Section 12 of the Administrative Procedure Act provides in part:
15
'No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.' 60 Stat. 244, 5 U.S.C. § 1011, 5 U.S.C.A. § 1011.
16
On their face the provisions of these statutes appear clearly to permit an action such as was brought here to review the final administrative determination of the Secretary of State. This view is confirmed by our decisions establishing that an action for a declaratory judgment is available as a remedy to secure a determination of citizenship—decisions rendered both before and after the enactment of the Administrative Procedure Act. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173. Moreover, the fact that the plaintiff is not within the United States has never been thought to bar an action for a declaratory judgment of this nature. Stewart v. Dulles, 101 U.S.App.D.C. 280, 248 F.2d 602; Bauer v. Acheson, D.C., 106 F.Supp. 445; see Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435.
17
It is the appellant's position, however, that despite these broad provisions of the Declaratory Judgments Act and the Administrative Procedure Act, Cort could not litigate his claim to citizenship in an action such as the one he brought in the District Court, but is confined instead to the procedures set out in subsections (b) and (c) of § 360 of the Immigration and Nationality Act of 1952. Section 360 establishes procedures for determining claims to American citizenship by those within and without the country. Subsection (a) covers claimants 'within the United States' and authorizes an action for a declaratory judgment against the head of the agency denying the claimant a right or privilege of citizenship—except that such an action cannot be instituted if the issue of citizenship arises in connection with an exclusion proceeding.5 Subsections (b) and (c) deal with citizenship claimants 'not within the United States.' The former provides with limitations, for the issuance abroad of certificates of identity 'for the purpose of traveling to a port of entry in the United States and applying for admission.' The latter subsection declares that a person issued such a certificate 'may apply for admission to the United States at any port of entry, and shall be subject to all the provisions of this Act relating to the conduct of proceedings involving aliens seeking admission to the United States.' Judicial review of those proceedings is to be by habeas corpus and not otherwise.6
18
Thus, the question posed is whether the procedures specified in § 360(b) and (c) provide the only method of reviewing the Secretary of State's determination that Cort has forfeited his citizenship. More precisely stated, the question in this case is whether, despite the liberal provisions of the Administrative Procedure Act, Congress intended that a native of this country living abroad must travel thousands of miles, be arrested, and go to jail in order to attack an administrative finding that he is not a citizen of the United States. We find nothing in the statutory language, in the legislative history, or in our prior decisions which leads us to believe that Congress had any such purpose.
19
The Administrative Procedure Act confers the right to judicial review of 'any agency action.' The procedures of § 360(b) and (c) would culminate in litigation not against the Secretary of State whose determination is here being attacked, but against the Attorney General. Whether such litigation could properly be considered review of the Secretary of State's determination presents a not insubstantial question. Putting to one side this conceptual difficulty, it is to be noted that subsections (b) and (c) by their very terms simply provide that a person outside of the United States who wishes to assert his citizenship 'may' apply for a certificate of identity and that a holder of a certificate of identity 'may' apply for admission to the United States. As the District Court said, 'The language of the section shows no intention to provide an exclusive remedy, or any remedy, for persons outside the United States who have not adopted the procedures outlined in subsections (b) and (c). Neither does the section indicate that such persons are to be denied existing remedies.' 187 F.Supp., at 685.
20
The predecessor of § 360 of the 1952 Act was § 503 of the Nationality Act of 1940, 54 Stat. 1137. That section provided that a claimant whose citizenship was denied by administrative authorities could institute a declaratory judgment suit in the federal courts to determine his right to citizenship, whether he has in the United States or abroad. In addition, the section broadened the venue of such an action by permitting suit to be brought in the 'district in which such person claims a permanent residence.' Finally, the section provided a method by which a claimant could enter the United States and prosecute his claim personally.7
21
The legislative history of § 503 indicates that Congress understood the provision for a declaratory judgment action to be merely a confirmation of existing law, or at most a clarification of it.8 What was concededly novel about § 503 was the provision designed to permit a citizenship claimant outside the United States to be admitted to this country upon a certificate of identity in order personally to prosecute his claim to citizenship, subject to the condition of deportation in the event of an adverse decision. At the time of the enactment of this provision some misgivings were expressed that it might be utilized by aliens to gain physical entry into the United States and then to disappear into the general populace.9
22
In the ensuing years the abuses which some had anticipated did, indeed, develop, and the legislative history of § 360 of the 1952 Act shows that the predominate concern of Congress was to limit the easy-entry provision of § 503 of the 1940 Act, under which these abuses had occurred. Thus the report of the Senate Committee which studied immigration and nationality problems for two and a half years found that § 503 'has been used, in a considerable number of cases, to gain entry into the United States where no such right existed.' S.Rep.No.1515, 81st Cong., 2d Sess., p. 777; see also Joint Hearings before the Submittees of the Committees on the Judiciary on S. 716, H.R. 2379 and H.R. 2816, 82d Cong., 1st Sess., pp. 108—110, 443—445. In describing the purpose of the legislation which became § 360 of the 1952 Act the Senate Judiciary Committee, stating that '(t)he bill modifies section 503 of the Nationality Act of 1940,' explained that it provides:
23
'that any person who has previously been physically present in the United States but who is not within the United States who claims a right or privilege as a national of the United States and is denied such right or privilege by any government agency may be issued a certificate of identity for the purpose of traveling to the United States and applying for admission to the United States. The net effect of this provision is to require that the determination of the nationality of such person shall be made in accordance with the normal immigration procedures. These procedures include review by habeas corpus proceedings where the issue of the nationality status of the person can be properly adjudicated.' S.Rep.No.1137, 82d Cong., 2d Sess., p. 50.
24
As a matter simply of grammatical construction, it seems obvious that the 'such person' referred to in the Committee Report is a person who has chosen to obtain a certificate of identity and to seek admission to the United States in order to prosecute his claim. The appellee in the present case is, of course, not such a person.
25
This legislative history is sufficient, we think, to show that the purpose of § 360(b) and (c) was to cut off the opportunity which aliens had abused under § 503 of the 1940 Act to gain fraudulent entry to the United States by prosecuting spurious citizenship claims. We are satisfied that Congress did not intend to foreclose lawsuits by claimants, such as Cort, who do not try to gain entry to the United States before prevailing in their claims to citizenship.
26
For these reasons, we hold that a person outside the United States who has been denied a right of citizenship is not confined to the procedures prescribed by § 360(b) and (c), and that the remedy pursued in the present case was an appropriate one. This view is in accord with previous decisions of this Court concerning the relationship of §§ 10 and 12 of the Administrative Procedure Act to the subsequently enacted Immigration and Nationality Act of 1952. See Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868; Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. The teaching of those cases is that the Court will not hold that the broadly remedial provisions of the Administrative Procedure Act are unavailable to review administrative decisions under the 1952 Act in the absence of clear and convincing evidence that Congress so intended.
27
With respect to the other issues presented by this appeal, the case is set for reargument during the October Term, 1962, to follow No. 19.
28
It is so ordered.
29
Case set for reargument.
30
Mr. Justice BRENNAN, concurring.
31
While I agree with the reasoning of the Court and join its opinion, I wish to note my view that its interpretation of § 360 of the Immigration and Nationality Act of 1952 is further supported by serious doubt as to whether the statute as construed and applied by the dissenting opinion would be constitutional. Compare, e.g., United States v. Witkovich, 353 U.S. 194, 201—202, 77 S.Ct. 779, 783, 784, 1 L.Ed.2d 765.
32
Necessarily implicit in the administrative denial of a right or privilege of citizenship on the ground that the individual affected has committed an expatriating act enumerated in § 401 of the 1940 Act or § 349 of the 1952 Act, is the assumption that the individual was theretofore a citizen. Accordingly, it follows from the interpretation advanced by the dissent that a person abroad who just prior to the adverse administrative action admittedly had been deemed a citizen, entitled to all the incidents of citizenship including the freedom to re-enter the country, may by unreviewable administrative action be relegated to the status of an alien confronted by all the barriers to alien entry and the limited access to judicial review that an alien enjoys. That Congress may, consistently with the requirements of due process, circumscribe general grants of jurisdiction1 so as to deny judicial review of administrative action which peremptorily initiates the treatment as an alien of one who had been a citizen seems at least doubtful enough that we should, if reasonably possible, avoid interpreting any statute to accomplish such a result.
33
If § 360(b), (c) provided the sole avenue to judicial review for one who while abroad is denied a right of citizenship, the following consequences would result: He would have to apply for a certificate of identity, which would be granted only if an administrative official was satisfied that the application was made in good faith and had a substantial basis. If the certificate were initially denied, an administrative appeal would have to be taken. If that failed, an attempt might be made to secure judicial review. A holding that no such review is available would mean that one who admittedly had been a citizen would have been conclusively converted into an alien without ever having gained access to any court. On the other hand, if review were forthcoming at this stage, and if issuance of a certificate were ordered, the individual would have gained only the right to travel to a United States port of entry—if he could afford the passage—there to be 'subject to all the provisions of this chapter relating to the conduct of proceedings involving aliens seeking admission to the United States.' He would, in other words, have to submit to detention as an alien although it is assumed that he was once a citizen and no court had ever determined that he had been expatriated. Should he still encounter an administrative denial of the right to enter, he would finally get into court, but 'in habeas corpus proceedings and not otherwise,' with whatever limitations upon the scope of review such language may imply.
34
The dissent would construe § 360 to mean that administrative action resulting in such a stark limitation of such fundamental rights is totally unreviewable. For the very procedures of subsections (b) and (c), which according to the dissent's interpretation are the only avenues to review open to the putative expatriate abroad, accomplish a conversion of citizenship into alienage. To read Congress as having denied judicial review of administrative action which throws an individual into this bind would be to tread upon a constitutional quicksand.
35
The dissent finds shelter in United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040, but that case does not resolve the constitutional doubts I have suggested. The precise issue there was the degree of finality to be accorded in habeas corpus proceedings to an administrative refusal of entry based on a finding that the petitioner was not, as he claimed, native-born and so had never been a citizen. Ju Toy was not an expatriation case in which administrative officials purported to withdraw rights of citizenship which admittedly once existed. Even if 'the mere fact that (persons seeking entry) claimed to be citizens would not have entitled them under the Constitution to a judicial hearing,'2 it does not follow that rights attaching to admitted citizenship may be forfeited without a judicial hearing. To deny the rights of citizenship to one who previously enjoyed them 'obviously deprives him of liberty * * *. It may result also in loss of both property and life, or of all that makes life worth living. Against the danger of such deprivation without the sanction afforded by judicial proceedings, the Fifth Amendment affords protection in its guarantee of due process of law. The difference in security of judicial over administrative action has been adverted to by this court.' Ng Fung Ho v. White, 259 U.S. 276, 284—285, 42 S.Ct. 492, 495, 66 L.Ed. 938.
36
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice CLARK join, dissenting.
37
The decision that the District Court had jurisdiction to entertain this declaratory judgment action, notwithstanding that the appellee is a foreign resident, seems to me manifestly wrong, in light of the governing statute and its legislative history which could hardly be more clear.
38
This issue depends upon § 360 of the 1952 Act. That section is entitled: 'Proceedings For Declaration of United States Nationality in The Event of (the administrative) Denial of Rights And Privileges as National.' The provisions of the section set out in full in the margin,1 may be summarized as follows:
39
(1) If the person whose rights as a national have been administratively denied 'is within the United States,' he may bring a declaratory judgment action under 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, to establish his citizenship,2 unless that issue was, or is, already involved in an 'exclusion' proceeding. The action must be brought within five years after the final administrative denial, and in the district where such person resides or claims residence. (Subsection '(a).')
40
(2) If such person is 'not within the United States,' but had previously been 'physically' there, or was born abroad of an American citizen parent and is under the age of 16, (i) he may apply abroad for a 'certificate of identity' to enable him to seek admission to the United States (subsection '(b)'); and (ii) if admission at a port of entry is finally denied him by the Attorney General, he may have that determination judicially reviewed 'in habeas corpus proceedings and not otherwise.' If ultimately excluded from the United States, such person is made subject to all the provisions of the immigration law relating to the admission of aliens to the United States. (Subsection '(c).')
41
As will be shown later, these provisions of the 1952 Act, among other things, departed from the comparable procedural provisions of § 503 of the Nationality Act of 1940, 54 Stat. 1137, 1171—1172, which had expressly made declaratory relief available to all citizenship claimants, whether 'within the United States or abroad,' following an administrative denial of that status.3 The purpose and effect of the new provisions are shown by the following extract from the Senate Judiciary Committee's report on the bill (S. 2550), § 360 of which, with only a minor addition and deletion,4 now bears the same number in the 1952 Act:
42
'Under the provisions of section 503 of the Nationality Act of 1940 any person who claims a right or privilege as a national of the United States and who is denied such right or privilege by a governmental agency on the ground that he is not a national of the United States may institute an action in a district Federal court for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted the action in court, he may obtain from a diplomatic or consular officer a certificate of identity and may be admitted to the United States with the certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States.
43
'The bill modifies section 503 of the Nationality Act of 1940 by limiting the court action exclusively to persons who are within the United States, and prohibits the court action in any case if the issue of the person's status as a national of the United States (1) arose by reason of, or in connection with, any deportation or exclusion proceeding or (2) is an issue in any such deportation or exclusion proceeding. The reason for the modification is that the issue of citizenship is always germane in an exclusion and deportation proceeding, in which case an adjudication of nationality status can be appropriately made.
44
'The bill further provides that any person who has previously been physically present in the United States but who is not within the United States who claims a right or privilege as a national of the United States and is denied such right or privilege by any government agency may be issued a certificate of identity for the purpose of traveling to the United States and applying for admission to the United States. The net effect of this provision is to require that the determination of the nationality of such person shall be made in accordance with the normal immigration procedures. These procedures include review by habeas corpus proceedings where the issue of the nationality status of the person can be properly adjudicated.' S.Rep. No. 1137, to accompany S. 2550, 82d Cong., 2d Sess., p. 50. (Emphasis added.)
45
The Court now holds, however, that under § 360 declaratory relief is still available to those 'not within the United States' as well as those 'within the United States,' as was so under § 503 of the 1940 Act; that the certificate of identity procedure provided in subsections (b) and (c) of § 360 is not the exclusive remedy available to nonresident citizenship claimants; that Congress' 'predominant concern' in enacting those subsections was to fend against possible misuse of certificates of identity in effecting fraudulent entry into this country; and that jurisdiction of this action accordingly lies under the Declaratory Judgment Act and the Administrative Procedure Act. These conclusions, which I believe are plainly inconsistent with the congressional purpose, as reflected on the face of § 360 itself and in the foregoing Senate Judiciary Committee report, are refuted beyond any doubt by the background and legislative history of § 360.
46
Prior to 1940, immigration and nationality statutes were silent on the form and scope of judicial review in deportation, exclusion, and nationality cases. In 1905 this Court, in a habeas corpus proceeding involving an administrative denial of admission to this country of a nonresident citizenship claimant who had temporarily departed, held that due process did not require a judicial trial of the issue of citizenship; and that the courts could inquire into the administrative decision only within the conventional limits of habeas corpus review.5 United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040 (Holmes, J.). In 1922, however, the Court held that a resident claimant in a deportation proceeding was entitled to a judicial determination of his citizenship status, thus turning the availability of full judicial relief on the geographical location of the claimant. Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (Brandeis, J.).
47
In 1934 the Declaratory Judgments Act was passed. 48 Stat. 955—956; 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, as since amended. In a case decided in 1939, this Court held that remedy applicable to resident citizenship claimants, see Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. However, despite the Elg decision, and no doubt because of the Ju Toy and Ng Fung Ho cases, the continuing prevailing view prior to 1940 seems to have been that relief under the Declaratory Judgments Act was not available to nonresidents seeking a determination of their citizenship claims.
48
It was not until 1940 that Congress, in the Nationality Act of 1940, first specifically dealt with the availability of declaratory relief in nationality cases. Under that statute the requirements for citizenship were greatly tightened and the provisions for loss of citizenship expanded. During the debates concern was expressed lest under existing law some persons might not get their 'day in court' with respect to claims to citizenship. 86 Cong.Rec. 13247. This led to the enactment of § 503 under which declaratory relief was made available to resident and nonresident claimants alike, and, in the case of the latter, authorizing, but not requiring, their provisional entry into the United States under certificates of identity, issuable in aid of a declaratory judgment suit already filed. Note 3, supra.
49
At the same time Congress recognized the possibility of abuse of this liberalized procedure on the part of nonresident claimants who might seek certificates of identity only to achieve entry into this country, without any thought of pressing their citizenship claims; and an attempt was made to guard against such abuse. Accordingly, the section was written to provide that certificates of identity should be furnished only upon 'a sworn application showing that the claim of nationality presented in such (declaratory judgment) action is made in good faith and has a substantial basis'; it also authorized the Secretary of State, with the approval of the Attorney General, to prescribe regulations for the issuance of such certificates.6 Note 3, supra.
50
Commencing soon after the close of World War II, and perhaps in part as a result of the then recent repeal of the Chinese Exclusion Act and continuing Communist successes in China, a large number of suits were filed in the federal courts by Chinese citizenship claimants. These carried in their wake consequences which Congress could hardly have fully anticipated when it enacted § 503. Such consequences were principally of three kinds. First, there was an increase in the volume of fraudulent entries into this country; many Chinese who had obtained certificates of identity incident to the institution of a declaratory judgment citizenship action would abandon the suit upon arrival here and disappear into the stream of the population. Second, the courts experienced difficulty in adjudicating 'derivative' citizenship claims without the claimants having been first exposed to normal immigration screening; such claims were often based on the assertion that the claimant was the foreign-born child of an American citizen who had temporarily returned to China, an assertion frequently difficult to disprove. Third, the federal court dockets became cluttered with these suits. See, e.g., United States ex rel. Dong Wing Ott v. Shaughnessy, D.C., 116 F.Supp. 745, 751—752, aff'd, 2 Cir., 220 F.2d 537; Mar Gong v. McGranery, D.C., 109 F.Supp. 821, rev'd sub nom. Mar Gong v. Brownell, 9 Cir., 209 F.2d 448. By the end of 1952, 1,288 such cases had been instituted. See Ly Shew v. Acheson, D.C., 110 F.Supp. 50, 54—55, vacated and remanded sub nom. Ly Shew v. Dulles, 9 Cir., 219 F.2d 413; Annual Reports of the Attorney General for 1956 (pp. 111—113) and 1957 (pp. 121—123). This state of affairs contributed in no small degree to the revamping of § 503 by § 360 of the statute now before us, enacted after five years of investigation pursuant to a 1947 Senate Resolution authorizing a general study of the immigration laws. S.Res. No. 137, 80th Cong., 1st Sess. (1947).
51
The first step in this direction occurred in 1950 when Senator McCarran introduced S. 3455, § 359 of which, entitled 'Judicial Proceedings for Declaration of United States Nationality in the Event of Denial of Rights and Privileges as a National,'7 was the earliest version of what ultimately became § 360 of the 1952 Act. Section 359 provided declaratory relief only for 'any person in the United States.' The Senate Report8 accompanying that bill, after observing that § 503 of the 1940 Act permitted persons 'within or without' the United States to file declaratory judgment suits, went on to say of proposed new § 359:
52
'In spite of the definite restrictions on the use and application of section 503 to bona fide cases (see supra, 369 U.S., pp. 389—390, 82 S.Ct., pp. 799—800), the subcommittee finds that the section had been subject to broad interpretation, and that it has been used, in a considerable number of cases, to gain entry into the United States where no such right existed. * * * The subcommittee therefore recommends that the provisions of section 503 as set out in the proposed bill be modified to limit the privilege to persons who are in the United States * * *.' (Emphasis added.)
53
Read in connection with this report it is surely beyond doubt that the § 503 'privilege' which was intended to be changed was not merely the right to a certificate of identity, which, under the existing statute, was an optional, not a necessary, appurtenance of a declaratory judgment suit, but the right of one abroad to maintain such a suit itself. Since a person 'in' the United States had no need for a certificate of identity, the 'privilege' limited by this bill to persons 'in' the United States can only mean the privilege of bringing a declaratory suit. In other words, the new proposal did not view the 'entry' problem as something that could be dealt with independently of the character of the judicial remedy to be afforded those administratively denied citizenship.9 This, as will be seen, remained in the forefront of the subsequent legislative discussions.
54
Early in the following year three additional bills were placed before the Congress, one in the Senate and two in the House. S. 716,10 a revision of the earlier McCarran bill, and H.R. 2379,11 introduced by Representative Walter, both provided for 'citizenship' declaratory relief only as to persons 'within the United States.' The third, H.R. 2816,12 introduced by Representative Celler, afforded such relief to 'any person' (making no reference to location), and in other respects was also substantially like existing § 503.
55
In the ensuing Joint Hearings on these bills13 attention became sharply focused on the question of what, if any, judicial relief (other than habeas corpus) should be available to nonresident citizenship claimants. The most revealing points of view are found in the statements submitted on behalf of the Departments of State and Justice.14 While both Departments took the position that some such relief should be afforded nonresidents,15 their proposals were quite different. State suggested declaratory relief for persons abroad limited to those whose original citizenship status was not in doubt, but who were deemed to have lost it; and that certificates of identity should be made available to such persons, on an optional basis, to permit their coming to this country in aid of their suits.16 Justice, on the other hand, recommended that all nonresidents whose claims to citizenship were not frivolous should be required to obtain a special certificate of identity, or its equivalent, so as to permit them to come to this country to test their claims in accordance with normal immigration procedures.17
56
'The Department of Justice objects to the enactment of section 360 unless it is amended to provide for the protection of persons abroad who have more than a frivolous claim to citizenship but who are unable to obtain a United States passport. To protect such persons the Department recommends adding to section 360 language which would permit the issuance to such persons of a special certificate of identity or a special 'visa.' That document should be described in such a manner as merely to authorize the person in question to proceed to a port in the United States and apply for admission as a national, in the usual manner. * * * However, the intent of this suggestion is that the person claiming citizenship shall be required to apply for admission to the United States at a port of entry and go through the usual screening, interrogation, and investigation, applicable in the cases of other persons seeking admission to the United States, so that the Immigration and Naturalization Service will have as complete a record as possible on each person entering this country claiming to be a national thereof.' Joint Hearings, p. 721. (Emphasis added.) However, it is evident that the proposals of both State and Justice were intended to fill the remedial gap in S. 716 respecting nonresidents; that they contemplated either limiting, or entirely doing away with, the unrestricted declaratory relief available to nonresidents under § 503 of the 1940 statute; that they were envisaged as constituting the exclusive remedy for those living abroad; and that they negative any idea that one so situated was to have the choice between such procedures and the general remedies provided by the Declaratory Judgments Act or the Administrative Procedure Act.
57
Following the Joint Hearings, the McCarran bill, S. 716, was redrawn as S. 2055,18 and the Walter bill, H.R. 2379, was revised as H.R. 5678,19 in consultation with representatives of the State and Justice Departments.20 The revised McCarran bill adopted the Department of Justice proposals, in effect limiting the judicial remedy for testing nonresident citizenship claims to that afforded in connection with 'exclusion' cases, that is habeas corpus.21 The new Walter bill was in effect a combination of existing § 503 and the suggestions of the State Department.22 That bill was eventually passed by the House.23 The McCarran bill, except for two minor deletions,24 was reported out by the Senate Judiciary Committee as S. 2550 and passed by the Senate. Supra, 369 U.S., pp. 386—387, 82 S.Ct. p. 798.
58
Congress, thus squarely faced with making, or not making, declaratory relief available to nonresident citizenship claimants, chose the latter course. It accepted S. 2550,25 the judicial remedy provisions of which became § 360 of the Immigration and Nationality Act of 1952. Note 1, supra.
59
In light of this unambiguous course of events, I do not understand how the Government's contention that the District Court lacked jurisdiction over this declaratory judgment action can be successfully challenged, the appellee at all relevant times having resided abroad. To say the least, the Court's contrary conclusion seems to me to rest on the most insecure kind of reasoning.
60
Certainly, the past cases in this Court lend no support to this decision. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, holding that a resident, threatened with deportation, could maintain a declaratory judgment action to establish citizenship, was of course quite in line with Ng Fung Ho v. White, supra. Moreover, the case was decided in 1939, before Congress, for the first time, addressed itself to the availability of declaratory relief in nationality cases. Supra, 369 U.S. p. 389, 82 S.Ct., p. 799. McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, is even more inapposite. The issue there was simply whether, in the circumstances involved, an alien then in this country was eligible for naturalization, so that the Attorney General had power to stay his deportation. The Court noted that § 503 of the 1940 Act was not available to the alien, since his citizenship status was not in issue. Incidentally, the Court did not reach the applicability of the Administrative Procedure Act. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, involved a nonresident alien's right to social security benefits, not citizenship.26
61
Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868, and Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225, the two cases relied on by the Court as supporting the applicability of the Administrative Procedure Act in this instance, were, respectively, simply straightforward deportation and exclusion cases, neither involving a citizenship claim. Unlike the sections in the 1952 Act relating to nationality, those governing deportation and exclusion then had no specific provisions dealing with judicial relief,27 and unlike this case, the relief in those cases was sought only after the administrative process had run its full course, and a 'final' determination had been made by the Attorney General.
62
When it comes to § 360 itself and the legislative history of the section, the Court's analysis is, if anything, even more cursory and unpersuasive. The Court initially finds that the declaratory judgment provision respecting nonresidents, contained in the predecessor of § 360—s 503 of the 1940 Act—was understood 'to be merely a confirmation of existing law, or at most a clarification of it.' In this, the Court has overlooked the Ju Toy and Ng Fung Ho cases which of course indicate precisely the contrary. Supra, 369 U.S., p. 388, 82 S.Ct., p. 799, and note 6.
63
Proceeding from that premise, and despite the unequivocal directive in subsection (c) of § 360 that a final determination of the Attorney General denying admission to a citizenship claimant shall be subject to judicial review 'in habeas corpus proceedings and not otherwise,' the Court concludes that such is not indeed the exclusive remedy. This is said to be so because § 360 provides only that the claimant 'may' apply abroad for a certificate of identity (subsection (b)), and upon arrival at our shores 'may' apply for admission (subsection (c)). This conclusion is supported only by a quotation from the District Court's opinion in this very case. It cannot withstand the statute and legislative history already discussed.
64
Finally, the Court considers that Congress' 'predominate concern' in enacting subsections (b) and (c) of § 360 was with fraudulent entry, not judicial remedies. It is said that this 'seems obvious' because the phrase 'such person,' contained in the extract quoted by the Court from the Judiciary Committee Report on S. 2550 (ante, 369 U.S., pp. 378—379, 82 S.Ct., p. 794), refers grammatically only to those persons who had elected to pursue the certificate of identity procedure in prosecuting their citizenship claims. But this conclusion also will hardly stand up when the full text of the Judiciary Committee Report, especially the clause 'The bill modifies section 503 of the Nationality Act of 1940 by limiting the court action exclusively to persons who are within the United States * * *,' is read (supra, 369 U.S., p. 387, 82 S.Ct., p. 798), and the relevant legislative history is considered.
65
In deciding the jurisdictional issue as it has, I fear that the Court has become the victim of the manner in which it has put that issue to itself:
66
'More precisely stated, the question in this case is whether, despite the liberal provisions of the Administrative Procedure Act, Congress intended that a native of this country living abroad must travel thousands of miles, be arrested, and go to jail in order to attack an administrative finding that he is not a citizen of the United States.'
67
But to sustain the Government's position on this issue it is not necessary to find that Congress, in enacting § 360, subdenly became severe, irrational, or capricious. As a result of the unfavorable experience with § 503 of the 1940 Act, Congress simply restored, with some alleviations, what until 1940 had been the procedure in such cases—a procedure whose constitutionality had long since been upheld by this Court with the firm support of such men as Holmes and Brandeis, JJ. And in so doing Congress acted only after the fullest inquiry, debate, and deliberation.
68
I am unable to grasp how the Court could have reached the conclusion that the present declaratory action is not precluded by § 360, except by making its own wish father to the thought.28
1
66 Stat. 163, 267—268, 8 U.S.C. § 1481(a)(10), 8 U.S.C.A. § 1481(a)(10).
2
50 U.S.C.App. § 454 et seq., 50 U.S.C.A.Appendix, § 454 et seq. Appellee had previously registered as a regular registrant under the Universal Military Training and Service Act of 1948.
3
356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630.
4
We postponed consideration of the question of our jurisdiction of this appeal until the hearing of the case on the merits. 365 U.S. 808, 81 S.Ct. 691, 5 L.Ed.2d 690. Under 28 U.S.C. § 1252, 28 U.S.C.A. § 1252, a direct appeal may be taken from a District Court decision holding unconstitutional an Act of Congress in a civil action in which an officer of the United States is a party. Since the District Court held § 349(a)(10) unconstitutional, this appeal is properly before us under § 1252.
An alternative basis for our jurisdiction over this appeal might be found in 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, providing for direct appeals from the decisions of three-judge courts convened under 28 U.S.C. §§ 2282, 2284, 28 U.S.C.A. §§ 2282, 2284. But since jurisdiction is clearly authorized by 28 U.S.C. § 1252, 28 U.S.C.A. § 1252, we need not inquire further into the applicability of 28 U.S.C. § 2282, 28 U.S.C.A. § 2282 to this case. In view of the unanimous decision below, the fact that three judges heard the case originally would not affect an otherwise final and reviewable decision of the District Court. See Thompson v. Whittier, 365 U.S. 465, 81 S.Ct. 712, 5 L.Ed.2d 704; compare International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U.S. 243, 251—252, 58 S.Ct. 875, 880, 82 L.Ed. 1316.
5
Section 360(a), 66 Stat. 163, 273, 8 U.S.C. § 1503(a), 8 U.S.C.A. § 1503(a):
'(a) If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28, United States Code, against the head of such department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such person's status as a national of the United States (1) arose by reason of, or in connection with any exclusion proceeding under the provisions of this or any other act, or (2) is in issue in any such exclusion proceeding. An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is hereby conferred upon those courts.'
6
Section 360(b) and (c), 66 Stat. 163, 273—274, 8 U.S.C. § 1503(b) and (c), 8 U.S.C.A. § 1503(b, c):
'(b) If any person who is not within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may make application to a diplomatic or consular officer of the United States in the foreign country in which he is residing for a certificate of identity for the purpose of traveling to a port of entry in the United States and applying for admission. Upon proof to the satisfaction of such diplomatic or consular officer that such application is made in good faith and has a substantial basis, he shall issue to such person a certificate of identity. From any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing his reasons for his decision. The Secretary of State shall prescribe rules and regulations for the issuance of certificates of identity as above provided. The provisions of this subsection shall be applicable only to a person who at some time prior to his application for the certificate of identity has been physically present in the United States, or to a person under sixteen years of age who was born abroad of a United States citizen parent.
'(c) A person who has been issued a certificate of identity under the provisions of subsection (b), and while in possession thereof, may apply for admission to the United States at any port of entry, and shall be subject to all the provisions of this Act relating to the conduct of proceedings involving aliens seeking admission to the United States. A final determination by the Attorney General that any such person is not entitled to admission to the United States shall be subject to review by any court of competent jurisdiction in habeas corpus proceedings and not otherwise. Any person described in this section who is finally excluded from admission to the United States shall be subject to all the provisions of this Act relating to aliens seeking admission to the United States.'
7
Section 503 of the Nationality Act of 1940, 54 Stat. 1137, 1171—1172, provided:
'If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States. Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision. The Secretary of State, with approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided.'
8
For example, one of the managers of the bill in the House explained the declaratory judgment provisions as follows:
'We have a rather new situation here, and that is we are cutting off the claim to citizenship of these thousands of persons under this provision in the bill who do not comply with its terms and therefore it was deemed advisable that some chance be given them to have what might be called their day in court. We have safeguarded the situation extremely carefully and feel that so far as possible we have prevented any abuse of it. It was my contention when this measure was up for consideration in the committee that such people did have the right to go into court either on a declaratory judgment or under a writ of habeas corpus, but there was a feeling on the part of others that they may not have that right.' 86 Cong.Rec. 13247.
A similar understanding of the measure was indicated during the House Committee Hearings on the bill.
'Mr. FLOURNOY * * *. The question remains, whether while still abroad he would not be able to resort to a petition for declaratory judgment or for a writ of mandamus.
'The CHAIRMAN. I should think, gentlemen, that we ought to go a little step further * * * to say that such person may, upon application, be permitted under certain conditions * * * to enter the United States for a short period of time as a temporary person only.' Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, superseded by H.R. 9980, 76th Cong., 1st Sess., pp. 291—292.
9
For instance, a representative of the Immigration and Naturalization Service testified at the House Committee hearings that after a citizen claimant had been permitted to enter the United States, '(I)t would be open to question, in my mind, whether you would ever get him out again.' Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, superseded by H.R. 9980, 76th Cong., 1st Sess., p. 292; see also, id., at 294, 296.
1
Administrative Procedure Act, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009; Declaratory Judgments Act, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201.
2
Ng Fung Ho v. White, 259 U.S. 276, 282, 42 S.Ct. 492, 494, 66 L.Ed. 938. See United States v. Ju Toy, 198 U.S. 253, 261, 25 S.Ct. 644, 645, 49 L.Ed. 1040:
'This petition should have been denied * * *, irrespective of what more we have to say, because it alleged nothing except citizenship. It disclosed neither abuse of authority nor the existence of evidence not laid before the Secretary. It did not even set forth that evidence, or allege its effect. But, as it was entertained, and the District Court found for the petitioner, it would be a severe measure to order the petition to be dismissed on that ground now, and we pass on to further considerations.'
1
'(a) If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of title 28, United States Code, against the head of such department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such person's status as a national of the United States (1) arose by reason of, or in connection with any exclusion proceeding under the provisions of this or any other act, or (2) is in issue in any such exclusion proceeding. An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in
which such person resides or claims a residence, and jurisdiction over such officials in such cases is hereby conferred upon those courts.
'(b) If any person who is not within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may make application to a diplomatic or consular officer of the United States in the foreign country in which he is residing for a certificate of identity for the purpose of traveling to a port of entry in the United States and applying for admission. Upon proof to the satisfaction of such diplomatic or consular officer that such application is made in good faith and has a substantial basis, he shall issue to such person a certificate of identity. From any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing his reasons for his decision. The Secretary of State shall prescribe rules and regulations for the issuance of certificates of identity as above provided. The provisions of this subsection shall be applicable only to a person who at some time prior to his application for the certificate of identity has been physically present in the United States, or to a person under sixteen years of age who was born abroad of a United States citizen parent.
'(c) A person who has been issued a certificate of identity under the provisions of subsection (b), and while in possession thereof, may apply for admission to the United States at any port of entry, and shall be subject to all the provisions of this Act relating to the conduct of proceedings involving aliens seeking admission to the United States. A final determination by the Attorney General that any such person is not entitled to admission to the United States shall be subject to review by any court of competent jurisdiction in habeas corpus proceedings and not otherwise. Any person described in this section who is finally excluded from admission to the United States shall be subject to all the provisions of this Act relating to aliens seeking admission to the United States.' Section 360, 66 Stat. 273—274, 8 U.S.C. § 1503, 8 U.S.C.A. § 1503. (Emphasis added.)
2
Throughout this opinion 'nationality' is spoken of as 'citizenship.'
3
Section 503, 54 Stat. 1171—1172, provides:
'If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States. Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision. The Secretary of State, with approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided.' (Emphasis added.)
4
See note 25, infra.
'G. DECLARATORY JUDGMENT
5
That is, whether the administrative determination had afforded a fair hearing; whether it was supported by evidence; and whether it had been reached under correct principles of law. See Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495.
6
It was an effort to allay the doubts of those who, on the one hand, wished to assure a full judicial remedy to all citizenship claimants, and of those who, on the other, feared the possible abuse of such a remedy, that led to the remarks of one of the managers of the House bill (Representative Rees), quoted in note 8 of the Court's opinion, ante, 369 U.S., p. 377, 82 S.Ct. p. 793. See 86 Cong.Rec. 13247.
7
S. 3455, 81st Cong., 2d Sess., § 359, pp. 239—240 (1950).
8
S.Rep. No. 1515, 81st Cong., 2d Sess., pp. 776—777 (1950).
9
This was the view of the Immigration and Naturalization Service, which in reporting on this bill stated that the new section was designed to 'replace section 503' authorizing a nonresident citizenship claimant 'to come to this country after filing such a suit in order to prosecute it to a conclusion.' See Legislative History, Immigration & Nationality Act, 82d Cong., Vol. 5 (Analysis of S. 3455), pp. 359—1 to 359—2. (Emphasis added.)
10
S. 716, 82d Cong., 1st Sess., § 360, p. 262 (1951).
11
H.R. 2379, 82d Cong., 1st Sess., § 360, pp. 263—264 (1951).
12
H.R. 2816, 82d Cong., 1st Sess., § 360, pp. 260—261 (1951).
13
Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 716, H.R. 2379, and H.R. 2816, 82d Cong., 1st Sess. (1951). (Hereafter Joint Hearings.)
14
A large number of 'lay' witnesses expressed their views before the Joint Committee. All were highly critical of the McCarran and Walter bills which afforded no declaratory remedy to nonresident citizenship claimants, but most had not heard of the so-called 'Chinese derivative suit' and other problems experienced under § 503. (Supra, 369 U.S., pp. 390—391, 82 S.Ct., p. 799.) On the other hand, it is entirely evident from the questioning of all witnesses that the problem which was uppermost in the minds of the committee members on this aspect of the bills was how best to afford adequate judicial relief to nonresidents under tight controls which would minimize the dangers of abuse. Joint Hearings, pp. 106—109, 338—339, 443—444, 522.
15
The State Department representative noted that the proposed McCarran bill 'withdraws from all persons abroad the right to obtain the judicial review of their claims of citizenship which is granted to them by section 503 of the Nationality Act of 1940.' Joint Hearings, p. 710. The representative of the Department of Justice described matters in the same vein. Joint Hearings, p. 720.
16
Joint Hearings, p. 710.
17
The Department's statement read:
18
S. 2055, 82d Cong., 1st Sess., § 360, pp. 277—279 (1951).
19
H.R. 5678, 82d Cong., 1st Sess., § 360, pp. 150—152 (1951). The Celler bill, H.R. 2816, which, like § 503, proposed a judicial remedy for both resident and nonresident citizenship claimants, scarcely figured in the Joint Hearings discussion.
20
'Following the joint hearings and in the course of numerous conferences attended by advisers representing unofficially the Departments of State and Justice, two modified versions of the abovementioned three bills (S. 716, H.R. 2379, H.R. 2816) were introduced * * *.' H.R.Rep. No. 1365, to accompany H.R. 5678, 82d Cong., 2d Sess., p. 28 (1952), U.S.Code Cong. and Adm.News 1952, p. 1679.
21
It should be noted that there was added to what in the final result became subsection (a) of § 360, relating to resident claimants, a specific reference to 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, the Declaratory Judgments Act, which had not been in § 503. No reference to 28 U.S.C. § 2201, 28 U.S.C.A. § 2201 was included in what ultimately became subsection (b).
22
Whereas the State Department had proposed that declaratory relief, as to nonresidents, should be limited to those who had lost their American citizenship, the Walter bill provided declaratory relief for any claimant abroad, but limited eligibility for a certificate of identity to those who had been 'physically' in the United States at some prior time, or to a person who was born abroad of an American-citizen parent and who wished to come to the United States to meet residential requirements for the retention of citizenship. After a declaratory action was filed, the bill provided that the claimant 'may' make application for a certificate of identity 'for the purpose of traveling to the United States to prosecute his action for determination of his citizenship status.'
23
At p. 22 of his brief before this Court the appellee, Cort, quotes extensively from the House Report which accompanied H.R. 5678—H.R.Rep. No. 1365, 82d Cong., 2d Sess., pp. 87—88 (1952) to support his contention that present § 360 was not designed to prohibit a suit for a declaratory judgment by a nonresident claimant, but only to limit the use of certificates of identity to gain entry in this country. However true this may be as to § 360 of H.R. 5678, Cort's reliance on that bill is misplaced since the House bill was rejected in conference and the Senate version of § 360 was eventually passed by both Houses and became law.
24
A qualifying phrase, 'as a national of the United States,' was deleted from subsections (b) and (c).
25
The conferees modified § 360 of S. 2550 in two minor respects. In subsection (a), a reference to 'deportation proceedings' was deleted, so that the disability to bring declaratory relief for a person 'within the United States' was limited only if the issue of nationality arose in an 'exclusion' proceeding. (Compare note 1 and text accompanying note 2, supra, with S.Rep. No. 1137, supra, 369 U.S., pp. 386—387, 82 S.Ct. p. 798.) In subsection (b) 'a person under sixteen years of age who was born abroad of a Unied States citizen parent' was also made eligible for a certificate of identity. (Compare note 1 with S.Rep. No. 1137, supra, 369 U.S., pp. 386—387, 82 S.Ct., p. 798.)
26
In addition to Flemming v. Nestor, the Court cites two opinions from the District of Columbia Circuit, Stewart v. Dulles, 101 U.S.App.D.C. 280, 248 F.2d 602; Bauer v. Acheson, D.C., 106 F.Supp. 445, in support of its sweeping statement that 'the fact that the plaintiff is not within the United States has never been thought to bar an action for a declaratory judgment of this nature.' If the phrase 'of this nature' is intended to refer to citizenship claims, the two cases are inapposite since neither determined citizenship; in both cases the issue was whether the State Department could refuse to renew a passport, except for the limited purpose of returning to this country, without affording a hearing. Moreover, taking that phrase as referring to citizenship claims, compare both the decision of the District Court in the present case, 187 F.Supp. 683, and Tom Mung Ngow v. Dulles, D.C., 122 F.Supp. 709, with D'Argento v. Dulles, D.C., 113 F.Supp. 933.
27
This is not so now. See the 1961 amendments to the Immigration and Nationality Act of 1952, note 28, infra.
28
It is not without irony that less than a year ago Congress, with the support of the Department of Justice, acted to tighten still further the Immigration and Nationality Act of 1952. Public Law 87—301, 75 Stat. 650 (effective October 26, 1961), amending the 1952 Act in various respects, among other things makes habeas corpus the sole judicial remedy in exclusion proceedings, thereby in effect rejecting Brownell v. Tom We Shung, supra, which had held the Administrative Procedure Act also available in such cases. See 8 U.S.C. § 1105a (Supp. III 1962), 8 U.S.C.A. § 1105a; H.R.Rep. No. 1086, 87th Cong., 1st Sess., pp. 22 33 (1961), U.S.Code Cong. and Adm.News 1961, p. 2950.
| 12
|
369 U.S. 355
82 S.Ct. 780
7 L.Ed.2d 798
ATLANTIC AND GULF STEVEDORES, INC., Petitioner,v.ELLERMAN LINES, LTD., and the City Line, Ltd.
No. 282.
Argued Feb. 20, 1962.
Decided April 2, 1962.
Rehearing Denied May 14, 1962.
See 369 U.S. 882, 82 S.Ct. 1137.
Francis E. Marshall, Philadelphia, Pa., for petitioner.
Martin J. McHugh, New York City, for National Ass'n of Stevedores, amicus curiae.
Thomas E. Byrne, Jr., Philadelphia, Pa., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the court.
1
Leighton Board was a longshoreman employed by Atlantic and Gulf Stevedores, Inc. Atlantic, the petitioner, performed stevedoring services for respondents. Beard received injuries while helping to discharge bales of burlap from a vessel owned by respondents. These bales, loaded in India, were bound by four parallel one-inch steel bands that petitioner had not placed around the bales but were part of the cargo; and each bale, containing 30 to 40 bolts of burlap, was stowed in tiers. The discharging operation consisted of pulling the bales from their stowed positions to the hatch and then raising them vertically through the hatch and lowering them onto the pier. This was accomplished by using a ring to which six equal-length ropes were attached. A hook was on the end of each rope; and two hooks were used on each bale, three bales being raised in one operation. Beard and his co-workers would signal the winch operator to pull the bales from their stow to a position under the hatch. When the sideways movement had ended, the bales would be raised vertically. After several hours of one unloading operation, two bands of one bale broke. The bale fell, injuring Beard.
2
The evidence showed that Atlantic played no part in the loading or stowage of this cargo of burlap. There were sixty-three tons of bales in the forward end of the hold destined for New York; and they extended halfway into the space under the hatch. The bales being unloaded were in the after end of the hold. The bale that fell struck the New York cargo and bounded toward Beard, pinning him against the after bulkhead and causing injuries resulting in the amputation of his right leg.
3
Beard sued respondents in the District Court on the basis of diversity of citizenship, alleging that their vessel was unseaworthy and that they were negligent. Respondents impleaded petitioner, alleging that it was negligent in its manner and method of unloading and asking indemnity from it in case respondents were held liable to Beard. Counsel near the end of the trial agreed upon five special interrogatories, to which the jury responded as follows:
4
'1. Was unseaworthiness a substantial factor in causing the injuries to the plaintiff?
5
Yes.
6
2. Was there negligence on the part of Ellerman Lines, Ltd., which was a substantial factor in causing injuries to the plaintiff?
7
Yes.
8
3. In what amount, if any, did you assess the damages to be awarded the plaintiff?
9
$100,000.
10
4. If you have answered yes to Interrogatories 1 or 2, did the fault of Ellerman Lines, Ltd., and the City Line, Ltd., arise out of any failure on the part of Atlantic and Gulf Stevedores, Inc., to do its work in accordance with the contractual obligation?
11
No.
12
5. If you have answered yes to Interrogatory No. 4 was Atlantic and Gulf Stevedores, Inc.'s breach of this contract a substantial factor in bringing about the injuries to the plaintiff?
13
No.
14
The District Court thereupon entered judgment in favor of Beard against respondents and in favor of petitioner on respondents' claim for indemnity.
15
On appeal it was argued, inter alia, that a finding of negligence on the part of respondents was warranted because they failed to provide a safe place to work in view of the manner in which the New York cargo was stowed. With this the Court of Appeals agreed. Negligence on the part of respondents, it said, was also established by the knowledge of their chief mate that the use of bale books was a dangerous way to discharge burlap bales, and from evidence that bands on the bales broke in 'roughly between 3 and 5 percent of the bales' during discharging operations. The court said that though the use of bale hooks may have been customary in Philadelphia, such use was not sufficient to relieve respondents of negligence.
16
It went on to say that there was evidence to show that respondents, by virtue of the manner of loading, were negligent in not affording Beard a safe place to work. It held, however, that since the 'warranty of workmanlike service extends to the handling of cargo * * * as well as to the use of equipment incidental to cargo handling' (Waterman S.S. Corp. v. Dugan & McNamara, 364 U.S. 421, 423, 81 S.Ct. 200, 201, 5 L.Ed.2d 169), petitioner was liable, as a matter of law, to respondents. For if it was negligent for respondents to permit Beard to work in an unsafe place, it was 'equally negligent' for petitioner to handle the cargo in the manner in did, in light of the unsafe place where Beard worked. 289 F.2d 201, 207.
17
The Court of Appeals therefore affirmed the judgment in favor of Beard and against respondents on the issue of negligence (without reaching the question of unseaworthiness), but reversed the judgment in favor of Atlantic. The case is here on a petition for certiorari. 368 U.S. 874, 82 S.Ct. 122, 7 L.Ed.2d 76.
18
We might agree with the Court of Appeals had the questions of fact been left to us. But neither we nor the Court of Appeals can redetermine facts found by the jury any more than the District Court can predetermine them. For the Seventh Amendment says that 'no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.'
19
The requirements of the Seventh Amendment were brought into play in this case, even though a stevedoring contract is a maritime contract.1 Since 'loading and stowing a ship's cargo' is part of the 'maritime service,' a stevedore can recover against his employer in admiralty for the latter's negligence (Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 61, 34 S.Ct. 733, 735, 58 L.Ed. 1208), on the conditions provided in the Longshoremen's Act, 33 U.S.C. § 905, 33 U.S.C.A. § 905. And when the shipowner is held liable, it may in the same suit recover over against the stevedoring company on the stevedore contract in order to prevent needless multiplicity of litigation. American Stevedores v. Porello, 330 U.S. 446, 456, 67 S.Ct. 847, 852, 91 L.Ed. 1011.
20
Congress since 1789, in giving Federal District Courts original jurisdiction of civil cases in admiralty, has saved 'to suitors in all cases all other remedies to which they are otherwise entitled.' 28 U.S.C. § 1333(1), 28 U.S.C.A. § 1333(1). Therefore, a suit for breach of a maritime contract, while it may be brought in admiralty, may also be pursued in an ordinary civil action,2 since, unlike the proceeding in The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397, it is a suit in personam. 'Where the suit is in personam, it may be brought either in admiralty or, under the saving clause, in an appropriate non-maritime court, by ordinary civil action.' Gilmore and Black, The Law of Admiralty (1957), p. 36. And such suits on the law side are not restricted to enforcement of common-law rights but extend as well to maritime torts. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 88—89, 66 S.Ct. 872, 874, 90 L.Ed. 1099.
21
This suit being in the federal courts by reason of diversity of citizenship carried with it, of course, the right to trial by jury. As in cases under the Jones Act, 46 U.S.C.A. § 688 (Schulz v. Pennsylvania R. Co., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668; Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404) and under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. (Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572; Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493), trial by jury is part of the remedy. Thus the provisions of the Seventh Amendment, noted above, are brought into play. Schulz v. Pennsylvania R. Co., supra, 350 U.S. at 524, 76 S.Ct. at 609. As we recently stated in another diversity case, it is the Seventh Amendment that fashions 'the federal policy favoring jury decisions of disputed fact questions.' Byrd v. Blue Ridge Rural Elec. Cooperative, 356 U.S. 525, 538, 539, 78 S.Ct. 893, 901, 2 L.Ed.2d 953. And see Herron v. Southern Pac. Co., 283 U.S. 91, 94 95, 51 S.Ct. 383, 384, 75 L.Ed. 857.
22
In answer to interrogatories Nos. 4 and 5 the jury found that petitioner had not failed to perform its contractual obligation to respondents. The contract provided that petitioner should do the work 'with every care and due dispatch to the satisfaction' of the owners. In its charge to the jury the District Court said that the owner had a duty to provide longshoremen a safe place to work; and it left to the jury whether respondents had warning that the method of unloading was unsafe and whether the manner of loading the cargo by respondents made this an unsafe place for Beard to work. It left to the jury respondents' contention that, if anyone was negligent in leaving the New York cargo in the place where it was and in not shifting it, it was petitioner's negligence, not theirs. It also charged the jury on petitioner's liability, should Beard be found to have established his case. It referred the jury to the contract saying petitioner was obliged 'to unload and discharge this cargo of burlap with the utmost care.'
23
The Court of Appeals held that the jury had been charged too restrictively, that their attention had been called only to the manner of using the hook. The trial judge did indeed charge:
24
'You must answer the question, was that a reasonable and safe method of operation for the discharge of that cargo? Taking into consideration that it had been done over a period of years, that it was a usual and accepted method in various places, you will have to examine into the nature of the application of the hook to the bale, and you will take into consideration the testimony of both experts, and both counsel argued to you in their interpretation of the testimony the results that they feel favor their side.'
25
But it went further and charged that if petitioner was responsible for the breaking of the bands, petitioner would be liable:
26
'* * * if you * * * find that that negligent conduct was such that it broke the band, rather than any unseaworthiness of the band,3 then you must find for the defendant shipping companies; but you have to make that finding in the light of all the circumstances, whether or not there was sufficient evidence that persuades you that that conduct of the longshoremen was responsible for the breaking of the band—not any unseaworthiness in the band itself.'
27
It also charged that if the verdict was for Beard, the jury should determine whether petitioner created the condition that made respondents liable. It charged:
28
'There again you have to run the whole gamut of facts in the case. You will have to decide whether or not there was an unreasonable discharge of this cargo, an unsafe method used in the discharge of this cargo, in the placing of the hook. Did they breach that contract to do it in a workmanlike manner with the utmost care? The steamship company says, 'Yes, they did. They breached that contract. They did not do it in a workmanlike manner. All the evidence here points to the fact that they did not do it with the utmost care, and therefore they caused the condition which created the liability which is ours, which the plaintiff has secured against us as defendants."
The trial judge further charged:
29
'* * * Whether or not there was a breach of that contract, what you look to decide is whether or not there was reasonably safe discharge of that cargo by the Atlantic & Gulf Stevedores. If it was not, if it was not done in a reasonably safe manner, then Atlantic & Gulf Stevedores would breach their warranty under the contract. If there was sub-standard performance on which it was foreseeable by them that some injury might happen or eventuate, then Atlantic & Gulf Stevedores would be responsible to the plaintiff shipping company.'
More specifically the trial judge charged:
30
'* * * you will have to determine whether there was negligence in the leaving of that New York part of that cargo in the place where it was, and whether it was an interference, as the plaintiff claims, with his condition of safety.
31
'On the other hand, the defendant says, 'This was not our job; the shifting should have been done by the stevedores. We, the shipping company, were not negligent in failing to get it out of the way.'
32
'The plaintiff asserts here and asks you to believe and to weigh in the balance toward meeting the burden which he has to establish by the fair preponderance of the evidence that this officer was there but did not stop the operation. The defendant says, 'If you find, no matter what the officer says, that this was being unloaded in a reasonably safe manner then we were not liable; it may well be that the Atlantic & Gulf stevedores are liable, but we were not liable."
33
We disagree with the Court of Appeals that the trial judge limited the issue of petitioner's liability to 'the use of the bale hook method in discharging the cargo.' 289 F.2d, at p. 208. When the District Court charged that in determining petitioner's contractual obligation the jury should decide 'whether or not there was a reasonably safe discharge' of the cargo, it included the totality of the circumstances.
34
The question of the manner in which the New York cargo had been stored was prominent in the case; and the trial judge left it to the jury on the question of respondents' negligence. On the issue of petitioner's liability his charge was no more precise than has been indicated. Yet respondents did not ask for more on this phase of the controversy. In their requested charge they were no more specific, except they maintained,4 as did the Court of Appeals, that under these circumstances the stevedore is liable under its contract as a matter of law.
35
We cannot say that petitioner was liable as a matter of law nor that the trial judge in the charge to the jury omitted any ingredient from petitioner's contractual liability. Moreover, we cannot say that the jury's verdict was inconsistent. The Court of Appeals said that the case of the respondents' negligence was established because
36
'* * * the record affords ample basis for a jury fact-finding that (1) use of the bale hook method in the discharge of the burlap bales constituted negligence, and (2) that the injured longshoreman was not afforded a safe place to work.' 289 F.2d, p. 207.
37
So far as we know the jury may have found respondents liable not on either of those two grounds but solely on a third, namely, because of defective bands—a matter which was covered by the charge to the jury on the issue of unseaworthiness, and properly so. Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 78 S.Ct. 438, 440, 2 L.Ed.2d 491. If that was the jury's view of the facts, then petitioner plainly would not be liable under its warranty. Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury's finding inconsistent results in a collision with the Seventh Amendment. Arnold v. Panhandle & S.F.R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889. Cf. Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 927, 3 L.Ed.2d 935.
38
Reversed.
39
Mr. Justice HARLAN concurs in the result.
40
Mr. Justice STEWART, whom Mr. Justice FRANKFURTER joins, dissenting.
41
In my view the Court of Appeals correctly ruled that the respondents were entitled to indemnity from the petitioner under principles first set forth by this Court in Ryan Stevedoring Co. v. PanAtlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, and followed in Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, and Waterman S. S. Corp. v. Dugan & McNamara, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169.
42
Beard's action was based upon both negligence and unseaworthiness. The respondents were alleged to have been negligent (1) in permitting the use of the bale hook method of discharging the bales, particularly in view of the chief officer's statement that he thought the method dangerous, and (2) in improperly stowing the New York cargo and thereby failing to use ordinary care to provide Beard with a safe place to work.1 The Court of Appeals properly determined that there was sufficient evidence on either ground to support the jury's general finding of negligence, a determination which I do not understand to be contested here. But a finding of negligence on either ground would necessarily carry with it the conclusion that the petitioner had breached its contractual obligation to the respondents.
43
As we said only last Term in Waterman S. S. Corp. v. Dugan & McNamara, supra, at 423, 81 S.Ct. at 201, the stevedore's 'warranty of workmanlike service extends to the handling of cargo * * * as well as to the use of equipment incidental to cargo handling * * *.' If the respondents were negligent in permitting the petitioner's use of a dangerous method of unloading cargo, the petitioner surely breached its 'warranty of workmanlike service' by using such a method in the first instance. Similarly, if the location of the so-called New York bales in the hold made the hold an unsafe place to work, the petitioner necessarily breached its warranty to the respondents by unloading the cargo before first moving those bales. The petitioner is in the business of handling cargo, and any danger created by the New York bales was at least as apparent to the petitioner as to the respondents. Under its warranty the petitioner had a duty to see that the danger was removed before proceeding to unload the Philadelphia cargo.
44
It is questionable whether the right to a jury trial under the Seventh Amendment is involved in this case, since the respondents' rights against the petitioner depend upon a maritime contract, not upon the common law. American Stevedores, Inc., v. Porello, 330 U.S. 446, 456, 67 S.Ct. 847, 852, 91 L.Ed. 1011. We need not pursue that inquiry, however, because in any event nothing in the Seventh Amendment removes the duty of a trial judge to give proper instructions to a jury, or the duty of a reviewing court to correct a trial judge's errors. Fed.Rules Civ.Proc., 50, 28 U.S.C.A. Here, each possible ground of the respondents' negligence vis-a -vis the original plaintiff involved a breach of the petitioner's warranty as a matter of law. The Court of Appeals correctly held that the trial judge was in error in not so instructing the jury.
45
I would affirm.
1
A stevedore's contract with a shipowner is 'comparable to a manufacturer's warranty of the soundness of its manufactured product. The shipowner's action is not changed from one for a breach of contract to one for a tort simply because recovery may turn upon the standard of the performance of the stevedoring service. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 133—134, 76 S.Ct. 232, 237—238, 100 L.Ed. 133.
2
Suits on maritime contracts may be brought in the federal courts under the head of diversity jurisdiction. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337.
3
The trial judge also charged that 'if you find that the bands of the bale were defective, were inadequate, or insufficient * * * then you might find the defendants liable under the doctrine of unseaworthiness.'
4
One of respondents' requested charges was:
'If, on the other hand, you find in favor of the plaintiff and against the defendant, and the basis of your finding is that the method of discharging was not reasonably safe and proper under the circumstances existing at the time of the accident, then I charge you that under these circumstances you must further find a verdict in favor of the defendant and against Atlantic & Gulf Stevedores, Inc.'
1
The opinion of the Court suggests that there was a third possible ground for the jury's finding of negligence, namely, failure to inspect the bands on the bale which fell. No such issue was ever submitted to the jury. The only issues submitted to the jury with respect to the bands related to the plaintiff's unseaworthiness claim.
| 78
|
369 U.S. 404
82 S.Ct. 853
7 L.Ed.2d 829
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.WALTON MANUFACTURING COMPANY, and Loganville Pants Company. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLORIDA CITRUS CANNERS COOPERATIVE.
Nos. 77 and 94.
Argued March 19 and 20, 1962.
Decided April 9, 1962.
Norton J. Come, Washington, D.C., for petitioner in Nos. 77 and 94.
Robert T. Thompson, Atlanta, Ga., for respondents in No. 77.
Mr. O. R. T. Bowden, Jacksonville, Fla., for respondent in No. 94.
PER CURIAM.
1
These cases are here on petitions for certiorari to the Court of Appeals for the Fifth Circuit, which refused enforcement of orders of the Board. We granted certiorari (368 U.S. 810, 812, 82 S.Ct. 30, 31, 7 L.Ed.2d 20, 21) because there was a seeming noncompliance by that court with our admonitions in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. We there said that while the 'reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view,' it may not 'displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' Id., at 488, 71 S.Ct. at 465.
2
Each of these cases involves alleged discriminatory discharges of employees in violation of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), 29 U.S.C.A. § 158(a)(3); and in each the Board ordered, inter alia, reinstatement of the workers in question with back pay. See 124 N.L.R.B. 1331, 124 N.L.R.B. 1182. In that type of case the Fifth Circuit has fashioned a special rule that was announced in National Labor Relations Board v. Tex-O-Kan Flour Mills Co., 122 F.2d 433, a decision rendered in 1941. In case of a ceaseand-desist order, the court said that it generally 'costs no money and only warns to observe a right which already existed; evidence short of demonstration may easily justify such an order.' Id., at 438. But the court established a more onerous rule for reinstatement cases:
3
'Orders for reinstatement of employees with back pay are somewhat different. They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial, and surmise or suspicion, even though reasonable, is not enough. The duty to weigh and test the evidence is of course on the Board. This court may not overrule a fact conclusion supported by substantial evidence, even though we deem it incorrect under all the evidence. * * * In the matters now concerning us, the controlling and ultimate fact question is the true reason which governed the very person who discharged or refused to reemploy in each instance. There is no doubt that each employee here making complaint was discharged, or if laid off was not reemployed, and that he was at the time a member of the union. In each case such membership may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ. If no other reason is apparent, union membership may logically be inferred. Even though the discharger disavows it under oath, if he can assign no other credible motive or cause, he need not be delived. But it remains true that the discharger knows the real cause of discharge, it is a fact to which he may swear. If he says it was not union membership or activity, but something else which in fact existed as a ground, his oath cannot be disregarded because of suspicion that he may be lying. There must be impeachment of him, or substantial contradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point.' Id., at 438—439.
4
This special rule concerning the weight of the evidence necessary to sustain the Board's orders for reinstatement with back pay has been repeatedly followed by the Fifth Circuit Court of Appeals in decisions refusing enforcement of that particular type of order. See National Labor Relations Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260; National Labor Relations Board v. Alco Feed Mills, 133 F.2d 419; National Labor Relations Board v. Ingram, 273 F.2d 670; National Labor Relations Board v. Allure Shoe Corp., 277 F.2d 231; Frosty Morn Meats, Inc., v. National Labor Relations Board, 296 F.2d 617.
5
The Court of Appeals in No. 77, National Labor Relations Board v. Walton Mfg. Co., 5 Cir., 286 F.2d 16, 25, in resolving the issue of credibility between witnesses for the employer and witnesses for the union, as to the reasons for the discharge of the employees in question, relied on the test stated in National Labor Relations Board v. Tex-O-Kan Flour Mills Co., supra. In No. 94, National Labor Relations Board v. Florida Citrus Canners Cooperative, 5 Cir., 288 F.2d 630, decided less than three months later, the Tex-O-Kan opinion was not mentioned. But its test of credibility of witnesses seemingly was applied. 288 F.2d at 636 638.
6
There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases. National Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479, and the Universal Camera Corp. case, both decided the same day, were cases involving reinstatement. They state a rule for review by Courts of Appeals in all Labor Board cases. The test in the Tex-O-Kan opinion for reinstatement cases is that the employer's statement under oath must be believed unless there is 'impeachment of him' or 'substantial contradiction,' or if there are 'circumstances' that 'raise doubts' they must be 'inconsistent with the positive sworn evidence on the exact point.' But the Examiner—the one whose appraisal of the testimony was discredited by the Court of Appeals in the Florida Citrus Canners Co-operative case—sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records. As we said in the Universal Camera case:
7
'* * * The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case.' 340 U.S., at 496, 71 S.Ct. at 469.
For the demeanor of a witness
8
'* * * may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one who has a motive to deny, may be uttered with such hisitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.' Dyer v. MacDougall, 2 Cir., 201 F.2d 265, 269.
9
We are in doubt as to how the Court of Appeals would have decided these two cases were it rid of the yardstick for reinstatement proceedings fashioned in its Tex-O-Kan decision. The reviewing function has been deposited, not here, but in the Court of Appeals, as the Universal Camera case makes clear. We 'will intervene only * * * when the standard appears to have been misapprehended or grossly misapplied.' 340 U.S., at 491, 71 S.Ct. at 466. Since the special rule for reinstatement cases announced in the Tex-O-Kan opinion apparently colored the review given by the Court of Appeals of these two orders, we remand the cases to it for reconsideration.
10
Reversed.
11
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.
12
These cases were brought here on the claim that the Court of Appeals had exceeded its reviewing power over orders of the National Labor Relations Board under the National Labor Relations Act, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e), requiring that 'the record considered as a whole' be canvassed. The Court does not find that the court did not assess the evidence, including inferences fairly to be drawn, in accordance with the scope of judicial review outlined in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, and its companion case, National Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479. But it remands the cases to the Court of Appeals because of doubt whether that court was improperly influenced in its determinations by what is deemed an erroneous legal rule as applied in National Labor Relations Board v. Tex-O-Kan Flour Mills Co., 5 Cir., 122 F.2d 433.
13
I am constrained to disagree with the Court's disposition of these cases on three grounds. First, the Court assumes legal identity between two cases that raise entirely different issues. Second, in neither case did the Court of Appeals apply a special and more stringent rule of review in cases of reinstatement for wrongful discharge. Finally, I think the Tex-O-Kan rule, insofar as it was applied below in Walton and is disapproved here, is in accord with prior decisions of this Court and does not conflict with the substantial evidence rule.
14
The Court of Appeals in Walton accepted findings by the Trial Examiner and the Board, 124 N.L.R.B. 1331, that respondents had violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), 29 U.S.C.A. § 158(a)(1), by surveillance of union activities, interrogations of employees regarding the union, and threats of reprisals for union adherence. But the court refused to enforce an order to reinstate a number of employees with back pay, holding on its reading of the same dead record that the Board had before it, that there was not substantial evidence to support the Board's findings that the employees had been discharged or laid off because of their union membership and activities. 286 F.2d 16.
15
In Florida Citrus the Examiner and the Board found that the respondent had refused to bargain as required by § 8(a)(5), and therefore that employees who had participated in a resulting strike had been discharged and replaced in violation of § 8(a)(1) and (3). 124 N.L.R.B. 1182. The Court of Appeals denied enforcement of the order to cease and desist, to bargain on request, and to reinstate the discharged employees with pay; it did so because it concluded, on consideration of the record as a whole, that the critical finding of refusal to bargain was not supported by substantial evidence. 288 F.2d 630.
16
The Court today reverses both decisions for misapplication of the standard of review set forth in § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e), and § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 1009(e), 5 U.S.C.A. § 1009(e), and elaborated in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, that 'The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.' The Court finds that the Court of Appeals may have erroneously adopted a special rule for cases of reinstatement for wrongful discharge, forbidding the Board to discredit an employer's testimony as to the reason for discharge unless he is impeached or contradicted. These decisions are reversed because in Walton the Court of Appeals 'relied on the test stated in National Labor Relations Board v. Tex-O-Kan Flour Mills Co.,' 122 F.2d 433, and in Florida Citrus, although Tex-O-Kan was not cited, 'its test of credibility of witnesses seemingly was applied.'
17
1. Tex-O-Kan.
18
That case came before the Court of Appeals for the Fifth Circuit in 1941. Judge Sibley, writing for the court, found ample evidence to sustain a cease-and-desist order against interference with union activity: 'a cease and desist order on this point costs no money and only warns to observe a right which already existed; evidence short of demonstration may easily justify such an order.' 122 F.2d at 438. But, he continued,
19
'Orders for reinstatement of employees with back pay are somewhat different. They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial, and surmise or suspicion, even though reasonable, is not enough.'
20
Accepting that the union membership of each discharged employee 'may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ,' the court enforced the back-pay order in several instances where no other reason for discharge was apparent, or where the reason given was refuted by the facts. But where management gave reasons for the discharge that were not contradicted by the facts—that a job had been abolished, that work had been inadequately done, that an employee had engaged in irregular conduct with company property or failed to report the taking of sick leave—the court held the findings of anti-union animus to be without substantial support:
21
'(I)t remains true that the discharger knows the real cause of discharge, it is a fact to which he may swear. If he says it was not union membership or activity, but something else which in fact existed as a ground, his oath cannot be disregarded because of suspicion that he may be lying. There must be impeachment of him, or substantial contradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point. This was squarely ruled as to a jury in Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819, * * * and the ruling is applicable to the Board as fact-finder.' 122 F.2d, at 439.
22
2. History of Tex-O-Kan in the Fifth Circuit.
23
In numerous cases Tex-O-Kan has been cited and quoted by the Court of Appeals for its view that testimony justifying discharge should not lightly be disregarded. National Labor Relations Board v. Goodyear Tire & Rubber Co., 5 Cir., 129 F.2d 661, 665; National Labor Relations Board v. Alco Feed Mills, 5 Cir., 133 F.2d 419, 421; National Labor Relations Board v. Oklahoma Transp. Co., 5 Cir., 140 F.2d 509, 510; National Labor Relations Board v. Edinburg Citrus Ass'n, 5 Cir., 147 F.2d 353, 355; National Labor Relations Board v. McGahey, 5 Cir., 233 F.2d 406, 411—412; National Labor Relations Board v. Drennon Food Products Co., 5 Cir., 272 F.2d 23, 27; National Labor Relations Board v. Walton Mfg. Co., 5 Cir., 286 F.2d 16, 25; National Labor Relations Board v. Atlanta Coca-Cola Bottling Co., 5 Cir., 293 F.2d 300, 306. See also Frosty Morn Meats, Inc., v. National Labor Relations Board, 5 Cir., 296 F.2d 617, 620—621, where Tex-O-Kan was not cited. On occasion Tex-O-Kan has also been quoted to distinguish between cease-and-desist orders and those requiring payment of back pay. National Labor Relations Board v. Williamson-Dickie Mfg. Co., 5 Cir., 130 F.2d 260, 263; National Labor Relations Board v. Ingram, 5 Cir., 273 F.2d 670, 673. The Tex-OKan credibility view has also been applied by the court in determining whether to enforce an order requiring payment of a bonus found to have been withheld in order to discourage union activity. National Labor Relations Board v. Crosby Chemicals, Inc., 5 Cir., 274 F.2d 72, 78. It has not been cited on the issue of credibility in cases involving only cease-and-desist orders.
3. A Special Rule for Reinstatement?
24
I agree with the Court that, despite the consequences of back-pay orders, 'There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases.' However, although the Court of Appeals has several times in the past seemingly applied two different rules, and although it has not relied on Tex-O-Kan in cases dealing solely with cease-and-desist orders, I do not think either of the present cases presents an appropriate occasion for admonishing that court against applying a double standard. Both cases concerned both cease-and-desist orders and reinstatement with back pay. In neither did the Court of Appeals suggest that it was applying a special rule for reinstatement orders alone. The part of the Tex-O-Kan opinion differentiating back-pay from cease-and-desist orders, quoted by this Court, was not quoted by the Court of Appeals in either case. In Walton the court said only that 'The requirements of substantiality of evidence and reasonableness of the inferences to be drawn from the evidence are not less in a case of reinstatement and reimbursement than where a cease and desist order is directed against interference'—not that the requirements are more strict. In Florida Citrus the single factual issue whether respondent had refused to bargain underlay both back-pay and cease-and-desist orders. The court properly dealt with this as a single issue and did not purport to apply different standards of review for purposes of various parts of the order. Tex-O-Kan was nowhere cited.
25
4. Tex-O-Kan's Credibility Rule and the Present Cases.
26
(1) In Florida Citrus collective bargaining had broken off shortly after a disastrous freeze that threatened future business. The Trial Examiner found that the company was responsible for the failure of bargaining. He recited a delay in meeting which he attributed to the company. He referred to the company's refusal to discuss the union's proposal at a meeting held just after the freeze, and to the company's failure in the face of union demands to request a postponement of negotiations to permit assessment of the effect of the freeze, as it had announced it intended to do. Finally, by resolving conflicting testimony in favor of the General Counsel's witnesses, he found that after the failure of negotiations the company had made anti-union statements and offered inducements to the employees should they forsake the union. This finding buttressed his interpretation of the company's earlier conduct when bargaining was called off. In rejecting the testimony of production manager Stephenson and accepting that of Holly, an employee to whom the alleged anti-union statements and promises had been made, the Examiner relied in part on a comparison of the demeanor of these two witnesses, saying also that Stephenson admitted such subjects as a company union had come up in the conversation; that many of the statements he was said to have made later came true; and that Holly was a logical choice to speak such sentiments to because he might reasonably have been induced to lead a movement of defection from the union.
27
The Court of Appeals held the finding of refusal to bargain to be without substantial support. It ruled that the Board could not reasonably infer a refusal to bargain from the company's refusal to make a formal request for postponing negotiations, since the union had issued an ultimatum that in effect rejected the request. Moreover, it rejected the Board's determinations of credibility. The court made it clear that it believed the Examiner's findings to have been based on 'the belief that reliance may not be placed upon the testimony of a witness who is a part of the management of an employer in a controversy with a labor union.' Beyond this, the court declared it was unable to accept the Examiner's crediting of Holly and discrediting of Stephenson because there was no prior indication of company opposition to the union and because it was unlikely that a manager would divulge the details of company labor policy to a watchman. As to a conflict in testimony between Stephenson and Wingate, the union's chief representative, the court ruled that Wingate's testimony should have been 'more carefully scrutinized' because the Examiner himself had found Wingate sometimes inaccurate or careless.
28
The Board attacks this decision as in conflict with the substantial evidence test of the Labor Management Relations Act and of the Universal Camera doctrine. The crux of its objection is that the court has substituted its judgment as to credibility for that of the Examiner and the Board; in particular, it complains that the record gives no support to the court's conclusion that the Examiner was inclined to discredit on principle all company witnesses. Neither in its petition for certiorari nor its brief on the merits did the Board cite Tex-O-Kan as the ground of its objection to the decision in Florida Citrus. Yet this Court reverses the Court of Appeals' decision without reference to the facts or the holding of that case, saying simply that the Tex-O-Kan 'test of credibility of witnesses seemingly was applied.' But Tex-O-Kan was no more relied on by the Court of Appeals than it was attacked in this case by the Board. Tex-O-Kan forbids the Examiner and the Board to dismiss summarily management's reasons for a discharge if not contradicted, impeached, or inherently improbable. Florida Citrus was not a case of uncontradicted testimony. It was not a case in which motivation for a discharge was in doubt. The issue was what Stephenson said to the Board's witnesses; the problem was a conflict of testimony. To be sure, the Board argues that both Florida Citrus and Tex-O-Kan are manifestations of the same attitude of hostility to findings of the Labor Board. But if the Court of Appeals strayed outside the Universal Camera bounds, it did not do so by discrediting uncontradicted testimony pursuant to Tex-O-Kan. If this Court is of the opinion that the Court of Appeals unjustifiably substituted its own judgment for that of the Board, it ought to say so. The Court of Appeals ought not to be reversed for following a decision it did not follow.
29
(2) Walton, by contrast, squarely presents a Tex-O-Kan problem. Four employees had been discharged and nine more laid off. The Trial Examiner, in each case rejecting company testimony that the employee was a substandard performer, attributed all thirteen to the employees' union activities. The Board agreed. In holding all these findings to be without substantial support, the Court of Appeals pointed out in the case of the four discharges that in addition to the company's witnesses there was evidence, sometimes given by the employee herself, either of unsatisfactory work or of meager union activity, or both. But in reversing the Board with respect to the nine layoffs the court quoted and relied on Tex-O-Kan, pointing out that management testimony, unimpeached, assigned plausible grounds for selecting each employee for layoff, and that the factual bases for these statements were largely uncontradicted.
30
5. Tex-O-Kan and the Substantial Evidence Test.
31
This Court today lays down a dogmatic rule against a Fifth Circuit evidentiary practice authorizing acceptance of plausible, uncontradicted, unimpeached testimony of motivation and apparently holds the Board's power in reviewing the dead record to determine witness credibility to be absolute and unreviewable:
32
'the demeanor of a witness '* * * may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story * * *."
33
This statement, torn from context in Judge Learned Hand's opinion in Dyer v. MacDougall, 2 Cir., 201 F.2d 265, 269, is elevated into a rule of law that ignores earlier decisions of this Court and effectively insulates many administrative findings from judicial review, contrary to the command of the Labor Management Relations Act and the Administrative Procedure Act that such findings should be set aside if not supported by substantial evidence on the whole record.
34
The cases abound with statements that the determination of credibility is for the trier of fact and is not to be upset on appeal. E.g., Tractor Training Service v. Federal Trade Commission, 227 F.2d 420, 424 (C.A.9th Cir.); Kitty Clover, Inc., v. National Labor Relations Board, 208 F.2d 212, 214 (C.A.8th Cir.). Professor Jaffe has said 'It is generally held that whether made by jury, judge, or agency a determination of credibility is nonreviewable unless there is uncontrovertible documentary evidence or physical fact which contradicts it.' Judicial Review: Question of Fact, 69 Harv.L.Rev. 1020, 1031. It is this view that has led some courts to hold that a verdict cannot be directed in favor of a party having the burden of proof if his case rests on the credibility of witnesses, e.g., Giles v. Giles, 204 Mass. 383, 90 N.E. 595. Likewise, Professor Davis speaks of it as settled 'that a trial tribunal may disbelieve the only evidence presented and dispose of the case by holding against the party having the burden of proof,' Administrative Law Treatise, § 29.06, p. 148. Even in reviewing the findings of a trial judge sitting without a jury, where the standard of review permits closer scrutiny by the Court of Appeals, Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. requires that 'due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' And in National Labor Relations Board v. Pittsburgh S.S. Co., 337 U.S. 656, 660, 69 S.Ct. 1283, 1285, 93 L.Ed. 1602, this Court held that the Board's crediting of all General Counsel's witnesses and discrediting of all respondent's does not indicate bias, so long as none of the credited testimony 'carries its own death wound' and none of that which was rejected 'carries its own irrefutable truth.'
35
The opportunity of the trier of fact to observe the demeanor of witnesses should not be overlooked. But neither should it be overlooked that the Board itself has no opportunity to observe the demeanor of witnesses. Yet the Board is not required to accept a trial examiner's credibility findings, see Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 492—497, 71 S.Ct. 456, 466—469, 95 L.Ed. 456, and, therefore, neither is the Court of Appeals. Even where the fact-finding function is not divided, 'due regard' for the advantage of the trier of fact does not require appellate impotence. Judge Hand's statement in Dyer v. MacDougall was one of logic, not of law; the court went on to affirm a summary judgment against the plaintiff, who presented no evidence and relied on the chance that defendant's witnesses would be disbelieved in their denials—because, despite the logical possibility that demeanor alone might convince of the affirmative, to deny summary judgment would have destroyed the effectiveness of judicial review. Indeed, this Court has never before required complete deference to credibility findings. National Labor Relations Board v. Pittsburgh S.S. Co., 337 U.S. 656, 69 S.Ct. 1283, 93 L.Ed. 1602, does not so hold; a great many findings not so unfounded as to indicate bias are nonetheless reversible error. In Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490, 71 S.Ct 456, 466, 95 L.Ed. 456, this Court declared that Labor Board findings must be set aside when the record 'clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.' A 'fair estimate of the worth of the testimony' hardly suggests that the Board is free to make an unfair estimate, especially in the light of the decision in Universal Camera that 'courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. * * * Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds.' Professor Davis states frankly that 'Administrative determinations of credibility are often set aside because the reviewing court firmly believes that the evidence supporting the determination is clearly less credible than the opposing evidence,' Administrative Law Treatise, § 29.06, p. 145. Professor Jaffe concedes that his general rule of deference to credibility findings is not unyielding and agrees that this may be proper: 'even on a credibility issue we should probably not tolerate the intuitive 'hunch' where the record evidence overwhelmingly points to the contrary.' 69 Harv.L.Rev., at 1032.
36
In fact, Tex-O-Kan is clearly supported by at least two decisions of this Court requiring a trier of fact to accept unimpeached testimony not contradicted by substantial evidence in the record. In Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132, a draft board had classified petitioner I—A for Selective Service purposes despite his uncontradicted testimony, letters, and an affidavit that he was an ordained minister exempted from service. Notwithstanding its holding that such an order was subject to more limited scrutiny than most agency orders, the Court reversed his conviction for refusing to report for induction:
37
'The court below in affirming the conviction apparently thought the local board was free to disbelieve Dickinson's testimonial and documentary evidence even in the absence of any impeaching or contradictory evidence. * * * But when the uncontroverted evidence supporting a registrant's claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice.' 346 U.S., at 396—397, 74 S.Ct. at 157.
38
It Chesapeake & Ohio R. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983, the Court reversed a trial judge's refusal to sustain a demurrer to the evidence on the ground that a complete defense was established by uncontradicted, unimpeached testimony. Quoting at length from cases in other courts upholding appellate review of credibility determinations, the Court concluded:
39
'We recognize the general rule, of course, as stated by both courts below, that the question of the credibility of witnesses is one for the jury alone; but this does not mean that the jury is at liberty, under the guise of passing upon the credibility of a witness, to disregard his testimony, when from no reasonable point of view is it open to doubt.' 283 U.S., at 216, 51 S.Ct. at 456.
40
In short, the Court of Appeals was entitled to come to the conclusion to which it came, for neither the Board nor the reviewing court was bound by the Examiner's findings on credibility. I do not think the Court of Appeals applied an erroneous standard of review or grossly misapplied the correct standard, and, therefore, since it is not for this Court to 'pass on the Board's conclusions in the first instance or to make an independent review of the review by the Court of Appeals,' National Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S. 498, 502, 71 S.Ct. 453, 456, 95 L.Ed. 479, I would either affirm the cases or, preferably, dismiss the writs as improvidently granted.
| 67
|
369 U.S. 429
82 S.Ct. 910
8 L.Ed.2d 1
August SCHOLLEv.James M. HARE, Secretary of State of Michigan, et al.
No. 22.
Supreme Court of the United States
April 23, 1962
Theodore Sachs, for appellant.
Paul L. Adams, Atty. Gen. of Michigan, Joseph R. Bilitzke, Sol. Gen., Samuel J. Torina, former Sol. Gen., Stanton S. Faville, Chief Asst. Atty. Gen., Leon S. Cohan, Deputy Atty. Gen., and G. Douglas Clapperton, Asst. Atty. Gen., for appellee James M. Hare.
Edmund E. Shepherd, for appellee Frank D. Beadle, and others.
Melvin Nord and Harold Norris, for appellant, as amici curiae.
PER CURIAM.
1
The judgment is vacated and the case is remanded to the Supreme Court of Michigan for further consideration in the light of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663.
2
Mr. Justice CLARK and Mr. Justice STEWART, concurring.
3
If we were able to read the several opinions in the Michigan Supreme Court the way our Brother HARLAN does, we would find much to persuade us that this case should not be remanded. But the state court opinions are not that clear to us. A careful reading of the opinions leaves us with the fixed impression that all but three members of the Michigan court were convinced that, whatever the underlying merits of the appellant's Equal Protection claim, it was, in the words of one of the justices, 'not enforcible in the courts.' 360 Mich. 1, 112, 104 N.W.2d 63. 121. In Baker v. Carr we held that such a claim is judicially cognizable. Accordingly, we join in the Court's order remanding this case to the Supreme Court of Michigan.
4
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
5
The present order of course reflects no views on the merits of the appellant's Equal Protection claim. It may well turn out that the assertion of invidious discrimination is not borne out by the record. Today's order simply reflects out belief that the Michigan Supreme Court should be the first to consider the merits of the federal constitutional claim, free from any doubts as to its justiciability.
6
Mr. Justice HARLAN, dissenting.
7
The Court remands this case to the Supreme Court of Michigan 'for further consideration in the light of Baker v. Carr, 369 U.S. 186 (82 S.Ct. 691, 7 L.Ed.2d 663).' In my opinion nothing decided or said by the majority in Baker casts any light upon, still less controls, the only issue actually adjudicated by the Michigan Supreme Court in the present case. I think that either this appeal should be dismissed for want of a substantial federal question or probable jurisdiction should be noted and the case set for argument.
8
The sole and dispositive question decided by the Michigan Supreme Court was concisely put by Justice Edwards, speaking for four members of that eightman court:
9
'Does the Fourteenth Amendment to the United States Constitution prohibit any State from enacting provisions for electoral districts for 1 house of its legislature (the State Senate) which result in substantial inequality of popular representation in that house?' Scholle v. Secretary of State, 360 Mich. 1, at 85, 104 N.W.2d 63, at 107.
10
These four members of the state court concluded that nothing in the Fourteenth Amendment or in the decisions of this Court construing the Equal Protection Clause 'prohibits a State from establishing senate electoral districts by geographic areas drawn generally along county lines which result in substantial inequality of voter representation favoring thinly populated areas as opposed to populous ones.' 360 Mich., at 91, 104 N.W.2d, at 110. Accordingly, the original petition for mandamus filed in the Supreme Court of Michigan was dismissed.1 The opinion of the four judges did not so much as mention questions pertaining to the 'jurisdiction' of the court, the 'standing' of the appellant, or the 'justiciability' of his claim.
11
Appellants filed a timely notice of appeal to this Court, and on docketing the record submitted a jurisdictional statement which set forth the questions presented for review.2 These papers, along with the motion to dismiss or affirm, taken in light of the prevailing opinion in the Michigan Supreme Court, leave no room for doubt but that the precise and single issue in this case is the one presented as Question IV in the jurisdictional statement: 'Do the 1952 amendments to Art. V, § 2 and § 4 of the Michigan Constitution, and the implementing legislation thereto, offend the Fourteenth Amendment to the U.S. Constitution, including the due-process and equal protection clauses thereof?' That issue is the more precisely delineated by three circumstances: (1) the legislative branch with which this case is concerned is the State Senate (not the entire State Legislature, as in Baker v. Carr); (2) the challenged electoral apportionment reflects the desires of Michigan's citizenry, as expressed in a 1952 popular referendum (and is not, as in Baker v. Carr, the product of legislative inaction);3 and (3) the present apportionment is prescribed by the Michigan Constitution (and is not in conflict with the State Constitution, as in Baker v. Carr).
12
Were there anything in this Court's recent decision in Baker v. Carr intimating that the constitutional question in this case ought to have been decided differently than it was by the Michigan Supreme Court, I would be content, for reasons given in my dissent in Baker (369 U.S. 186, 330, 82 S.Ct. 691, 771, 7 L.Ed.2d 663), simply to note my dissent to the Court's failure to dismiss this appeal for want of a substantial federal question. But both the majority opinion in the Baker case and a separate concurrence written to dispel any 'distressingly inaccurate impression of what the Court decides,' 369 U.S., at 265, 82 S.Ct., at 736, were at pains to warn that nothing more was decided than '(a) that the (federal district) court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) * * * that the appellants have standing to challenge the Tennessee apportionment statutes.' 369 U.S., at 197—198, 265, 82 S.Ct. at 699, 736. How any of the extensive discussion on these three subjects in the Baker majority opinion can be thought to shed light on the discrete federal constitutional question on which the present case turns—a question which was indeed studiously avoided in the majority opinion in Baker—is difficult to understand.
13
Moreover, the remand cannot be justified on the theory that Baker v. Carr for the first time suggests—albeit sub silentio—that an arbitrary or capricious state legislative apportionment may violate the Equal Protection Clause. For the Michigan Supreme Court assumed precisely that proposition and nonetheless said of the existing apportionment: 'In the face of * * * history and * * * precedent, we find no way by which we can say that the classification we are concerned with herein is 'wholly arbitrary,' and hence repugnant to the Fourteenth Amendment of the United States Constitution as the United States supreme court has construed it to this date.' 360 Mich., at 106, 104 N.W.2d, at 118.
14
With all respect, I consider that in thus remanding this case the Court has been less than forthright with the Michigan Supreme Court. That court is left in the uncomfortable position where it will have to choose between adhering to its present decision—in my view a faithful reflection of this Court's past cases—or treating the remand as an oblique invitation from this Court to hold that the Equal Protection Clause prohibits a State from constitutionally freezing the seats in its Senate, with the effect of maintaining numerical voting inequalities, even though that course reflects the expressed will of the people of the State. (Note 3, supra.)
15
In my view the matter should not be left in this equivocal posture. Both the orderly solution of this particular case, and the wider ramifications that are bound to follow in the wake of Baker v. Carr, demand that the Court come to grips now with the basic issue tendered by this case. This should be done either by dismissing the appeal for want of a substantial federal question or by noting probable jurisdiction and then deciding the issue one way or another. For reasons given in my separate dissent in the Baker case, I think dismissal is the right course.
1
On appeals to the Supreme Court of Michigan the result of an equally divided court is that the judgment below is affirmed. Mich.Stat.Ann. § 27.46 (1938), Comp.Laws 1948, § 601.26. Although no statute expressly controls, it appears that Michigan follows the general rule that no affirmative action may be taken on an original petition unless a majority of the justices considering the case vote to grant relief. Consequently the effect of an equal division on an original petition for a writ of mandamus would be a dismissal of the petition. Cf. In re Hartley, 317 Mich. 441, 27 N.W.2d 48.
It appears, moreover that in fact five members (a majority) of the Michigan Supreme Court concurred as to this issue. The separate concurring opinion of Justice Black of that court shows that he also concluded 'that a state may—unfettered juridically by the 14th amendment—determine what as a matter of state policy shall be 'a proper diffusion of political initiative' as between the thinly and heavily populated areas of the state.' 360 Mich., at 119—120, 104 N.W.2d, at 125.
2
The appellant listed the following as the 'Questions Presented':
'I. Does the Fourteenth Amendment to the U.S. Constitution prohibit the establishment by a state of permanent state legislative districts grossly unequal in population?
'II. Does the Fourteenth Amendment to the U.S. Constitution prohibit the establishment by a state of permanent legislative districts lacking any discernible, rational, uniform, non-arbitrary and non-discriminatory basis of representation whatever (save, only, the freezing by such enactment of legislative malapportionment therefore invalid under prior constitutional provisions)?
'III. Does a suit duly brought in a state court of otherwise competent jurisdiction, challenging a state constitutional amendment respecting legislative apportionment and/or districting on grounds of asserted conflict with the Fourteenth Amendment to the United States Constitution, present a justiciable controversy of which such court has jurisdiction and the power to render relief?
'IV. Do the 1952 amendments to Art. V, § 2 and § 4 of the Michigan Constitution, and the implementing legislation thereto, offend the Fourteenth Amendment to the U.S. Constitution, including the due-process and equal protection clauses thereof?
'V. If so, may the Michigan Supreme Court, otherwise possessed of jurisdiction, entertain and render relief in an action to invalidate such enactments?'
The third of these questions does assert the issue of 'justiciability.' However, no reference to 'justiciability' appears in the opinion written for four justices of the state court, and the appellees' motion to dismiss or affirm combined, entirely justifiably in face of the record, the appellant's five questions into the following single question:
'Does Article V, Section 2 of the Michigan Constitution, as amended by a majority vote in the general election of November 1952, of the people of the State of Michigan, which prescribes that the Michigan Senate shall consist of 34 members, each of whom is to be elected from a geographically described area, not subject to change because of fluctuations in population, violate the equal protection or due process clause of the Fourteenth Amendment to the United States Constitution?'
3
The disputed provision of the Michigan Constitution, Art. V, § 2, which establishes permanent state senatorial districts not subject to change because of fluctuations in population, was adopted as initiative Proposition No. 3 in a referendum held throughout the State in November 1952, Pub.Acts 1953, p. 438.
| 12
|
369 U.S. 506
82 S.Ct. 884
8 L.Ed.2d 70
Willard CARNLEY, Petitioner,v.H. G. COCHRAN, Jr., Director of the Division of Corrections, State of Florida.
No. 158.
Argued Feb. 20 and 21, 1962.
Decided April 30, 1962.
Harold A. Ward, III, Winter Park, Fla., for petitioner.
James G. Mahorner, Asst. Atty. Gen., Tallahassee, Fla., for respondent, pro hac vice.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The petitioner, who was not afforded the assistance of counsel for his defense at his trial, claims that, for this reason, his conviction by a jury in the Court of Record for Escambia County, Florida, deprived him of rights guaranteed by the Fourteenth Amendment. He obtained a provisional writ of habeas corpus from the Florida Supreme Court on his petition asserting that claim. However, that court, on the petition, the respondent's return and the petitioner's reply—but without any hearing—discharged the writ. 123 So.2d 249. Since an important constitutional right is involved, we granted certiorari and appointed counsel to represent the petitioner in this Court. 366 U.S. 958, 81 S.Ct. 1927, 6 L.Ed.2d 1253, 368 U.S. 806, 82 S.Ct. 43.
2
The assistance of counsel might well have materially aided the petitioner in coping with several aspects of the case. He was charged with the non-capital offenses of incestuous sexual intercourse with his 13-year-old daughter and, in a separate count relating to the same acts, fondling a minor child, that is, assault in a lewd, lascivious and indecent manner, upon a female child under the age of 14. At the time of trial two sets of Florida criminal statutes contained language reaching such behavior. Sections 741.22 and 800.04, Florida Statutes, 1959, F.S.A., were generally criminal provisions separately defining the two offenses of incest and assault in a lewd, lascivious, and indecent manner. In addition, both offenses were included within the later enacted Chapter 801 of the Florida Statutes—Florida's so-called Child Molester Act—if the victim was 14 years of age or younger.1 The Florida Supreme Court plainly conceived the petitioner's prosecution for both offenses as having been under the Child Molester Act. 123 So.2d at 250. While that is an obviously plausible view, a lawyer, but not a layman, might have perceived that because the Child Molester Act was invoked against the petitioner in respect of conduct elsewhere specifically defined as criminal, the 1954 decision of the Florida Supreme Court in Copeland v. State, 76 So.2d 137, raised doubts, under the Florida Constitution, of the validity of a prosecution based on the Act.2 The picture is further complicated by the fact that the Child Molester Act had included no reference to incest prior to an amendment made subsequent to the petitioner's alleged offense.3
3
Establishing the basis of the petitioner's prosecution was vitally important for the protection of his rights. If the Child Molester Act was validly applied against the petitioner, counsel could have materially assisted him by invoking on his behalf the special provisions of that law governing the disposition of defendants charged under it. Sections 741.22 and 800.04 authorize only jail sentences. In contrast, the Child Molester Act empowers the sentencing judge in a proper case to commit the convicted defendant to a Florida state hospital for treatment and rehabilitation.4 That law also permits the accused to petition for a psychiatric or psychological examination for the purpose of assisting the court in the trial of the case.5
4
There are thus present considerations of a sort often deemed sufficient to require the conclusion that a trial for crime without defense counsel did not measure up to the requirements of the Fourteenth Amendment. See, e.g., Chewning v. Cunningham, 368 U.S. 443, 446—447, 82 S.Ct. 498, 7 L.Ed.2d 442; Reynolds v. Cochran, 365 U.S. 525, 531—532, 81 S.Ct. 723, 5 L.Ed.2d 754; McNeal v. Culver, 365 U.S. 109, 114—116, 81 S.Ct. 413, 5 L.Ed.2d 445; Rice v. Olson, 324 U.S. 786, 789—791, 65 S.Ct. 989, 89 L.Ed. 1367.
5
Other aspects of this record also support petitioner's claim of the unfairness of trying him without affording him the help of a lawyer. As must generally be the case, the trial judge could not effectively discharge the roles of both judge and defense counsel. Here the record shows that the trial judge made efforts to assist the petitioner, but there were important omissions in the guidance he gave. He did not fully apprise the petitioner of vital procedural rights of which laymen could not be expected to know but to which defense counsel doubtless would have called attention. The omissions are significant. See, e.g., Cash v. Culver, 358 U.S. 633, 637—638, 79 S.Ct. 432, 3 L.Ed.2d 557; Gibbs v. Burke, 337 U.S. 773, 776—778, 69 S.Ct. 1247, 93 L.Ed. 1686; Hudson v. North Carolina, 363 U.S. 697, 702—703, 80 S.Ct. 1314, 4 L.Ed.2d 1500. Despite the allegation in respondent's return that 'the petitioners were carefully instructed by the trial court with regard to the rights guaranteed by both the Constitution of Florida and the Constitution of the United States6 and with regard to the procedures to be followed during the course of the trial,' it appears that, while petitioner was advised that he need not testify, he was not told what consequences might follow if he did testify. He chose to testify and his criminal record was brought out on his cross-examination. For defense lawyers, it is commonplace to weigh the risk to the accused of the revelation on cross-examination of a prior criminal record, when advising an accused whether to take the stand in his own behalf; for petitioner, the question had to be decided in ignorance of this important consideration. Nor does it appear that the trial judge advised the petitioner of his right to examine prospective jurors on voir dire, or of his right to submit proposed instructions to the jury, or of his right to object to the instructions that were given.
6
Other circumstances attending this case only serve to accentuate the unfairness of trial without counsel. Petitioner is illiterate. He did not interpose a single objection during the trial. The only two witnesses against him were his daughter and a 15-year-old son. Although both petitioner and his wife testified that they had experienced disciplinary problems with the children, and thus clearly revealed a possibly significant avenue for impeachment of the children's testimony, there was no cross-examination worthy of the name.7
7
We hold that petitioner's case was one in which the assistance of counsel, unless intelligently and understandingly waived by him, was a right guaranteed him by the Fourteenth Amendment.
8
We must therefore consider whether the petitioner did intelligently and understandingly waive the assistance of counsel. The record does not show that the trial judge offered and the petitioner declined counsel. Cf. Moore v. Michigan, 355 U.S. 155, 160—161, 78 S.Ct. 191, 2 L.Ed.2d 167. Nevertheless, the State Supreme Court imputed to petitioner the waiver of the benefit of counsel on a ground stated in the court's opinion as follows: 'If the record shows that defendant did not have counsel * * *, it will be presumed that defendant waived the benefit of counsel * * *.' 123 So.2d at 251. This might mean that the petitioner could have suffered no constitutional deprivation if he had not formally requested counsel, and that failure to make such a request is to be presumed unless the record shows the contrary. But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.8 In McNeal v. Culver, supra, the petitioner's allegation that he had requested counsel was countered by a denial in the return that 'petitioner's constitutional rights were violated by the court's alleged refusal to appoint counsel in his behalf,' and the State Supreme Court noted that the record was silent as to any request. We held that when the Constitution grants protection against criminal proceedings without the assistance of counsel, counsel must be furnished '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.' 365 U.S. at 111, note 1, 81 S.Ct. at 415. See Rice v. Olson, supra, 324 U.S. at 788, 65 S.Ct. at 990; Gibbs v. Burke, supra, 337 U.S. at 780, 69 S.Ct. at 1250.
9
However, the Florida Supreme Court may not have meant that the constitutional right to counsel depends upon a formal request. The court may have meant that from the very fact that no counsel was present, it would be assumed that the trial judge made an offer of counsel which the petitioner declined.9 Or, it may have meant that it would assume simply that petitioner knew of his right to counsel and was willing to forego it. Of course, the validity of such presumptions is immediately called in question because the accused has no way of protecting against them during his trial except by requesting counsel—a formality upon which we have just said his right may not be made to depend. Nor is it an answer to say that he may counter such presumptions on collateral attack by showing—if he can—that he had not in fact agreed, or been willing, to be tried without counsel. To cast such a burden on the accused is wholly at war with the standard of proof of waiver of the right to counsel which we laid down in Johnson v. Zerbst, 304 U.S. 458, 464—465, 58 S.Ct. 1019, 82 L.Ed. 1461:
10
'It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescene in the loss of fundamental rights.'
11
'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.'
12
We have held the principles declared in Johnson v. Zerbst equally applicable to asserted waivers of the right to counsel in state criminal proceedings. In Rice v. Olson, supra, the petitioner had pleaded guilty to a burglary charge. He did not claim that he had requested counsel, but alleged that he had not been advised of his right to the assistance of counsel and that he had not waived that right. In affirming the denial of relief, the State Supreme Court wrote that "It is not necessary that there be a formal waiver; and a waiver will ordinarily be implied where accused appears without counsel and fails to request that counsel be assigned to him, particularly where accused voluntarily pleads guilty." We held that even when there had been a guilty plea such an implication, treated as a conclusive presumption, was 'inconsistent with our interpretation of the scope of the Fourteenth Amendment,' and that 'A defendant who pleads guilty is entitled to the benefit of counsel, and a request for counsel is not necessary.' 324 U.S. at 788, 65 S.Ct. at 990. However, we recognized in Rice v. Olson that, although the Fourteenth Amendment would not countenance any presumption of waiver from the appearance of the accused without counsel and the silence of the record as to a request, the entry of the guilty plea might have raised a fact issue as to whether the accused did not intelligently and understandingly waive his constitutional right. We held that a hearing was required since the facts were in dispute. In the present case, however, there was no guilty plea, and the return to the writ does not allege an affirmative waiver.10 Therefore, there is no disputed fact question requiring a hearing. Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.
13
Neither Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 nor Moore v. Michigan, supra, is in any way inconsistent with our holding and disposition here. In Bute, in which the petitioner pleaded guilty without having requested counsel, it was alleged that he had not been advised of his right of counsel. The Court held that there had been no denial of a constitutional right, but it expressly disclaimed a waiver rationale. It decided simply that the nature of the charge and the circumstances attending the reception of the guilty plea, as recited in that record, were not such as to call into play any constitutionally protected right to counsel. In Moore, the record showed clearly that the petitioner had expressly declined an offer of counsel by the trial judge, and we held that the accused had to show by a preponderance of the evidence that his acquiescence was not sufficiently understanding and intelligent to amount to an effective waiver. But no such burden can be imposed upon an accused unless the record—or a hearing, where required—reveals his affirmative acquiescence. Where, as in this case, the constitutional infirmity of trial without counsel is manifest, and there is not even an allegation, much less a showing, of affirmative waiver, the accused is entitled to relief from his unconstitutional conviction.
14
The judgment of the Florida Supreme Court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
15
Reversed and remanded.
16
Mr. Justice HARLAN concurs in the result.
17
Mr. Justice FRANKFURTER took no part in the decision of this case.
18
Mr. Justice WHITE took no part in the consideration or decision of this case.
19
Mr. Justice BLACK, concurring.
20
I concur in the Court's judgment of reversal and agree for the reasons stated in its opinion that petitioner was, even under the constitutional doctrine announced in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, entitled to be represented by counsel. That case, decided in 1942, held that an indigent defendant charged with crime in a state court did not have a right under the Federal Constitution to be provided with counsel unless this Court could say 'by an appraisal of the totality of facts in a given case' that the refusal to provide counsel for the particular defendant constituted 'a denial of fundamental fairness, shocking to the universal sense of justice * * *.' Id., at 462, 62 S.Ct. at 1256. I dissented from the Court's denial of counsel and its announcement of what I considered to be such an impossibly vague and unpredictable standard. Among other grounds I thought the defendant in that case entitled to counsel because of my belief that the Fourteenth Amendment makes applicable to the States the Sixth Amendment's guarantee that 'In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence.' That is still my view.
21
Twenty years' experience in the state and federal courts with the Betts v. Brady rule has demonstrated its basic failure as a constitutional guide. Indeed, it has served not to guide but to confuse the courts as to when a person prosecuted by a State for crime is entitled to a lawyer. Little more could be expected, however, of a standard which imposes upon courts nothing more than the perplexing responsibility of appointing lawyers for an accused when a trial judge believes that a failure to do so would be 'shocking to the universal sense of justice.' To be sure, in recent years this Court has been fairly consistent in assuring indigent defendants the right to counsel. As the years have gone on we have been compelled even under the Betts rule to reverse more and more state convictions either for new trial or for hearing to determine whether counsel had been erroneously denied1 a result that in my judgment is due to a growing recognition of the fact that our Bill of Rights is correct in assuming that no layman should be compelled to defend himself in a criminal prosecution. But all defendants who have been convicted of crime without the benefit of counsel cannot possibly bring their cases to us. And one need only look at the records of the right-to-counsel cases since Betts v. Brady in both state and federal courts to understand the capriciousness with which the 'shocking to the universal sense of justice' standard bestows its protection upon persons accused of crime.2 I think that now is the time to abandon this vague, fickle standard for determining the right to counsel of a person prosecuted for crime in a state court. We can do that by recognizing that defendants in state courts have by reason of the Fourteenth Amendment the same unequivocal right to counsel as defendants in federal courts have been held to have by virtue of the Sixth Amendment. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. For these and many other reasons, including those set out in McNeal v. Culver, 365 U.S. 109, 117, 81 S.Ct. 413, 5 L.Ed.2d 445, by Mr. Justice Douglas and joined in by Mr. Justice Brennan, I would overrule Betts v. Brady in this case. In so doing we would simply return to the holding of this Court in Powell v. Alabama, 287 U.S. 45, 68 69, 53 S.Ct. 55, 77 L.Ed. 158, where it was stated with reference to prosecution for crime in the state courts that 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.' I am aware that this statement was made in a capital case, but the Fourteenth Amendment protects life, liberty, and property and I would hold that defendants prosecuted for crime are entitled to counsel whether it is their life, their liberty, or their property which is at stake in a criminal prosecution.
22
THE CHIEF JUSTICE and Mr. Justice DOUGLAS, while joining the opinion of the Court, also join this opinion.
23
Mr. Justice DOUGLAS, concurring.
24
While I join the opinion of the Court and the separate opinion of Mr. Justice BLACK, I wish to add a word to the reasons Mr. Justice BRENNAN and I gave in McNeal v. Culver, 365 U.S. 109, 117—119, 81 S.Ct. 413, 5 L.Ed.2d 445, for overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595.
25
Petitioner, an admitted illiterate,* was forced to try his case to a six-man jury. There is no record of the proceedings at which the jury was impaneled. There is nothing to show that petitioner was told of his right to challenge individual veniremen, or the panel as a whole, or that he challenged anyone for cause or exercised any of the six peremptory challenges granted him by Florida law. Fla.Stat., 1959, § 913.08, F.S.A.
26
It is certain that he could have made no challenge to the panel as a whole. Such challenge must be in writing. Fla.Stats., 1959, § 913.01, F.S.A., and the Florida Supreme Court tells us he could not write. But even if he could, it is doubtful that he would have been able to show an improper method of selection or even discrimination, because he was confined for a lengthy period prior to trial, five months of which were alleged to have been spent in solitary confinement. He did not have an opportunity, therefore, to gather the factual evidence necessary to sustain a possible challenge to the panel. The Florida statute, moreover, explicitly requires that the written challenge specify the facts on which it is based. Ibid.
27
Had petitioner been able to write, and had he access to the facts, he still would not, in all probability, have been able to build a legal argument sufficient to challenge the panel. He is a man of low intelligence. Some of the grounds for challenging the panel that might have been invoked by petitioner turn on difficult questions of state law, as where it is alleged that the legislature has passed a special, or local, law providing for the summoning and impaneling of grand and petit jurors. Article III, § 20, of the Florida Constitution, F.S.A. prohibits such 'special' laws. It is not always clear, though, whether a particular law is 'special' or 'general.' See, e.g., Hysler v. State, 132 Fla. 200, 181 So. 350; 132 Fla. 209, 181 So. 354; State ex rel. Green v. Pearson, 153 Fla. 314, 14 So.2d 565. The sophisticated nature of the arguments necessary to attack a law as 'special' would almost always be beyond the comprehension of one unlearned in the law.
28
In Florida, a plea of abatement is the usual manner of testing the legality of a jury list. In some cases, a proceeding in mandamus has been deemed a proper remedy, as where it is claimed that the county commissioners have erred in the manner in which they selected the panel. State ex rel. Jackson v. Jordan, 101 Fla. 616, 135 So. 138. Often a simple oral challenge to an individual juror can achieve just as much, as where an accused contends a venireman does not have the 'qualifications required by law.' Fla.Stat., 1959, § 913.03(1), F.S.A. Yet obviously an illiterate cannot be expected to know these niceties of criminal procedure.
29
Assuming that an accused does decide to challenge prospective veniremen, either peremptorily or for cause, he must then decide how to secure the maximum benefit from his peremptory challenges. Florida statutes provide at least 12 independent grounds for a challenge for cause. Fla.Stat., 1959, § 913.03, F.S.A. Ignorance of a ground for challenge is no defense. Denmark v. State, 43 Fla. 182, 31 So. 269; McNish v. State, 47 Fla. 69, 36 So. 176; Webster v. State, 47 Fla. 108, 36 So. 584. Objections to qualifications of jurors not raised at the trial will not be considered on appeal. McNish v. State, supra; Crosby v. State, 90 Fla. 381, 106 So. 741.
30
Where the trial court excuses a juror on its own motion, the accused has a right to object. The objection must be timely made, and the grounds therefor clearly stated. It is too late to object once the juror has been excused. Ellis v. State, 25 Fla. 702, 6 So. 768. On appeal, the accused must be able to show that the action of the court was prejudicial, or constituted an abuse of discretion. Williams v. State, 45 Fla. 128, 34 So. 279; Peadon v. State, 46 Fla. 124, 35 So. 204.
31
The special difficulties facing an accused in a jury trial do not end with challenges to the panel or individual jurors. Florida prohibits the trial judge from commenting on the weight of the evidence, Lester v. State, 37 Fla. 382, 20 So. 232; Leavine v. State, 109 Fla. 447, 147 So. 897; Seward v. State, Fla., 59 So.2d 529, or from expressing an opinion that the accused should be convicted, Wood v. State, 31 Fla. 221, 12 So. 539, lest he influence the jury in its decision. But if he did make such comment, and the accused took no exception, the error will be deemed waived on appeal (Surrency v. State, 48 Fla. 59, 37 So. 575; Smith v. State, 65 Fla. 56, 61 So. 120), except where the interests of justice would not be served. Kellum v. State 104 So.2d 99 (Fla.Ct.App.3d Dist.).
32
Hearsay evidence takes on added importance in jury trials. It is excluded if prejudicial. Owens v. State, 65 Fla. 483, 62 So. 651; Alvarez v. State, 75 Fla. 286, 78 So. 272. But if admitted without objection, it is generally regarded as having been received by consent. Sims v. State, 59 Fla. 38, 52 So. 198. An objection after a question has been answered is sometimes held to come too late. Schley v. State, 48 Fla. 53, 37 So. 518; Williams v. State, 58 Fla. 138, 50 So. 749; Sims v. State, supra. Yet a motion to strike may achieve the same result. Dickens v. State, 50 Fla. 17, 38 So. 909. In a rapid-fire exchange of questions and answers by the prosecution and a witness, a defendant without the assistance of counsel will oftentime find himself helpless to object or even to conceive grounds on which an objection to hearsay will lie. Indeed, what constitutes hearsay is itself a difficult question, on which judges may not always agree. See, e.g., Royal v. State, 127 Fla. 320, 170 So. 450.
33
Once the evidence is in, an accused in Florida has the right to have the jury instructed on the law of the case before any final arguments are made. 'The Judge's charge following immediately upon the conclusion of the evidence may enable the jury to obtain a clearer and more accurate conception of their duties in the particular case than if they were required to wait until after the argument of counsel to hear the law of the case from the judge.' Smithie v. State, 88 Fla. 70, 76, 101 So. 276, 278. This right is waived by a failure to take exception to the procedure adopted by the court. Defects in the instructions of the court will likewise be deemed waived, where the accused fails to make timely objection. White v. State, 122 So.2d 340 (Fla.Ct.App.2d Dist.); Williams v. State, Fla., 117 So.2d 473.
34
Intricate procedural rules are not restricted to criminal trials in Florida. Similar rules, equally as complex and confusing to the layman, may be found in the criminal statutes of the other States. I assume that they might not be applied with the same vigor against a layman defending himself, as they would against one represented by a lawyer. Yet even so, the rule of Betts v. Brady projected in a jury trial faces a layman with a labyrinth he can never understand nor negotiate.
35
As a result, the jury system—pride of the English-speaking world—becomes a trap for the layman because he is utterly without ability to make it serve the ends of justice.
1
Fla.Stat., 1959, § 741.22, F.S.A.:
'Punishment for incest.—Persons within the degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void, who intermarry or commit adultery or fornication with each other, shall be punished by imprisonment in the state prison not exceeding twenty years, or in the county jail not exceeding one year.'
Fla.Stat., 1959, § 800.04, F.S.A.:
'Lewd, lascivious or indecent assault or act upon or in presence of child.—Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without intent to commit rape where such child is female, shall be deemed guilty of a felony and punished by imprisonment in the state prison or county jail for not more than ten years.'
Fla.Stat., 1959, § 801.02, F.S.A.:
'Definitions.—An offense under the provisions of this chapter shall include attempted rape, sodomy, attempted sodomy, crimes against nature, attempted crimes against nature, lewd and lascivious behavior, incest and attempted incest, assault (when a sexual act is completed or attempted) and assault and battery (when a sexual act is completed or attempted), when said acts are committed against, to, or with a person fourteen years of age or under.'
2
In the Copeland case, supra, the Florida Supreme Court held that the inclusion of rape in the Child Molester Act—with its attendant alteration in the consequences of that offense when committed against a child of 14 or younger—ran afoul of the State Constitution because the Act embraced 11 distinct crimes separately dealt with in other statutes, because the Act failed to set forth at length the general rape provisions which were pro tanto amended, and because the title of the Act failed to give notice that the consequences of rape had been changed. But see Buchanan v. State, Fla.App., 111 So.2d 51, in which the District Court of Appeal upheld the Child Molester Act as applied to lewd and lascivious conduct.
3
Florida Laws, E.S.1957, c. 57—1990.
4
Fla.Stat., 1959, § 801.03(1), F.S.A.:
'Powers and duties of judge after convictions.—
'(1) When any person has been convicted of an offense within the meaning of this chapter, it shall be within the power and jurisdiction of the trial judge to:
'(a) Sentence said person to a term of years not to exceed twenty-five years in the state prison at Raiford.
'(b) Commit such person for treatment and rehabilitation to the Florida state hospital, or to the hospital or the state institution to which he would be sent as provided by law because of his age or color provided the hospital or institution possesses a maximum security facility as prescribed by the board of commissioners of state institutions. When, as provided for in this law, there shall have been created and established a Florida research and treatment center then the trial judge shall, instead of committing a person to the Florida state hospital, commit such person instead to the Florida research and treatment center. In any such case the court may, in its discretion, stay further criminal proceedings or defer the imposition of sentence pending the discharge of such person from further treatment in accordance with the procedure as outlined in this chapter.'
Fla.Stat., 1959, § 801.08, %.f.s.a./:
'Execution of judgment may be suspended; probation; requirements.—
'(1) The trial judge under whose jurisdiction a conviction is obtained may suspend the execution of judgment and place the defendant upon probation.
'(2) The trial court placing a defendant on probation may at any time revoke the order placing such defendant on probation and impose such sentence or commitment as might have been imposed at the time of conviction.
'(3) No defendant shall be placed on probation or continue on probation until the court is satisfied that the defendant will take regular psychiatric, psychotherapeutic or counseling help, and the individual helping the defendant shall make written reports at intervals of not more than six months to the court and the probation officer in charge of the case. The costs, fees and charges for treatment of a defendant on probation shall not be a charge of the county where the defendant was tried.'
5
Fla.Stat., 1959, § 801.10, %.f.s.a./:
'Examination; petition for, court order.—When any person is charged with an offense within the purview of this chapter, said person may petition the court for a psychiatric and psychological examination as heretofore set out and the written report shall be filed with the clerk of the court having jurisdiction of the offense for the purpose of assisting the court in the trial of the case. The court may, of its own initiative, or upon petition of an interested person, order such examination and report as heretofore set out.'
6
Emphasis in original.
7
The wife testified: 'We tried to be firm with them, but it seemed like the more firm we got, these two older kids, they couldn't stand the pressure, so they would, every time that their Daddy would get after them or something or other about some of their doings, well, that oldest boy would say, 'Well, Daddy, you will sure regret it. I will get even with you one way or the other,' and also the girl would get mad and flirtified and she would almost have the same opinion.'
The entire cross-examination of both witnesses by petitioner and by his wife, who was a codefendant, is as follows:
'CROSS EXAMINATION BY MR. WILLARD CARNLEY:
'Q. Carol Jean, you say your mother, she went and made arrangements to get the casket for your sister?
'A. Yes.
'Q. You are right sure now that she did?
'A. I am sure.
'Q. Well, I will tell the Court, my wife was out at Mr. Joe Gayfer's house—
'THE COURT: Wait a minute, sir, you are testifying. You will have a chance to testify when the State rests. Any questions you wish to ask your daughter, you are welcome to do it.
'CROSS EXAMINATION BY MRS. PEARL CARNLEY:
'Q. Carol Jean, don't you recall after you got age of maturity that Mother tried to tell you right from wrong and always teach you right from wrong?
'A. Yes, you have taught me right from wrong.
'THEREUPON the witness was excused.
'CROSS EXAMINATION BY MRS. CARNLEY:
'Q. J.W., at this period of time, did you realize whenever we was up there at Century of your Dad's sickness from the time we moved up there until it was springtime, and after he was sick from his stomach that he taken a serious attack down by reason of his employment?
'A. Yes, I realize he said he was sick. He was supposed to be sick. I know that.
'THEREUPON the witness was excused.'
8
For this reason, there is no occasion to hold a hearing in this case to settle the fact issue raised by the petition and return as to whether the petitioner requested counsel.
9
Or that the trial judge was justified in believing that the accused knew perfectly well of his right to counsel, and that it was unnecessary to make an explicit offer and to secure to accused's rejection of the offer.
10
Petitioner's allegation that he requested counsel is, obviously, tantamount to a denial of waiver. The return's denial of a request is not, however, for reasons already canvassed, the equivalent of an allegation of waiver.
The return alleged that the trial judge instructed petitioner as to his constitutional rights, but this allegation claimed support in the transcript, inspection of which reveals no instruction as to any constitutional right except the right not to testify.
1
Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; McNeal v. Culver, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445; Hudson v. North Carolina, 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 1500; Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557; Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170; De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. But cf. Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955.
2
Compare, e.g., Flansburg v. Kaiser, D.C., 55 F.Supp. 959, aff'd on other grounds, 8 Cir., 144 F.2d 917, with Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55; Parker v. Ellis, 5 Cir., 258 F.2d 937, with Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145; Henderson v. Bannan, 6 Cir., 256 F.2d 363, with United States ex rel. Savini v. Jackson, 2 Cir., 250 F.2d 349. Numerous other examples could of course be cited including the contrast between the decisions cited in note 1 and the lower court decisions which they reversed which had held that the denial of counsel had not been erroneous under the Betts v. Brady rule.
*
The Florida Supreme Court denied petitioner's application for a writ of habeas corpus without a hearing. With respect to the allegation that both petitioner and his wife were illiterate and unable to defend themselves, the court admitted that the record showed conclusively that they were in fact illiterate. It concluded, however, that illiteracy alone did not necessarily import ignorance of the ordinary things of life, such as how to get money from a bank. Apparently classifying the conduct of a defense to a felony charge as one of the 'commonplace things of life,' the court concluded there was no showing petitioner or his wife 'suffered in the slightest from lack of intelligence.' 123 So.2d 249, 251. (Petitioner's wife joined in the proceedings below, but is not a party to the petition for certiorari.)
| 01
|
369 U.S. 438
82 S.Ct. 917
8 L.Ed.2d 21
Mark COPPEDGE, Jr., Petitioner,v.UNITED STATES.
No. 157.
Argued Dec. 12, 1961.
April 30, 1962.
Decided April 30, 1962.
[Syllabus from pages 438-440 intentionally omitted]
Bennett Boskey, Washington, D.C., for the petitioner.
Carl W. Belcher, Washington, D.C., for the respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
Tried and convicted in a Federal District Court for an offense against the United States, petitioner applied for leave to appeal his conviction to the Court of Appeals in forma pauperis. His application was denied. The case presents this question: What standard is to be applied by the lower federal courts in passing upon such applications? The articulation of a usable standard has been the source of considerable recent litigation.1 And, while we recognize that no single word or group of words can provide a precise formula that will dispose of every case, we think it appropriate to indicate in somewhat greater detail than in the past, the approach a Court of Appeals must take toward an indigent's application for leave to take a direct appeal from his criminal conviction in forma pauperis.
2
Statutory provision for litigation in forma pauperis in the federal courts is made by 28 U.S.C. § 1915, 28 U.S.C.A. § 1915, authorizing '(a)ny court of the United States' to allow indigent persons to prosecute, defend or appeal suits without prepayment of costs. Before discussing our understanding of the proper manner in which a Court of Appeals is to exercise its authority to allow a criminal appeal in forma pauperis, we believe it would be helpful to indicate briefly the law applicable to criminal appeals generally. The provisions of § 1915 can be understood and applied in such cases only when read together with the other provisions of the Judicial Code and the Federal Rules governing criminal appeals.
3
Present federal law has made an appeal from a District Court's judgment of conviction in a criminal case what is, in effect, a matter of right.2 That is, a defendant has a right to have his conviction reviewed by a Court of Appeals, and need not petition that court for an exercise of its discretion to allow him to bring the case before the court. The only requirements a defendant must meet for perfecting his appeal are those expressed as time limitations within which various procedural steps must be completed. First, a timely notice of appeal must be filed in the District Court to confer jurisdiction upon the Court of Appeals over the case.3 Subsequently, designations of the transcript, a record on appeal and briefs must be filed in the appropriate forum.4
4
The indigent defendant will generally experience no material difficulty in filing a timely notice of appeal.5 But thereafter he is immediately faced with court fees for docketing his appeal in the Court of Appeals and with the cost of preparing the record, including a stenographic transcript of at least portions of the trial proceedings.6 If he is unable to meet either or both of these expenses, he can perfect his appeal only by applying for leave to appeal in forma pauperis. The application, to be made to the District Court in which the defendant was convicted,7 must conform to the requirements of 28 U.S.C. § 1915(a), 28 U.S.C.A. § 1915(a) and include, in affidavit form, the defendant's representations of poverty, a statement of the case, and his belief that he is entitled to redress. The sole statutory language by which the District Court is guided in passing upon the application provides '(a)n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.' 28 U.S.C. § 1915(a), 28 U.S.C.A. § 1915(a).
5
What meaning should be placed on the 'good faith' of which the statute speaks? In the context of a criminal appeal, we do not believe it can be read to require a District Court to determine whether the would-be appellant seeks further review of his case in subjective good faith, i.e., good faith from his subjective point of view.8 Such a construction would deprive the legislation of sensible meaning, there probably being no convicted defendant who would not sincerely wish a Court of Appeals to review his conviction. Further, a subjective standard might suggest that only persons who, in good conscience, could insist on their innocence, are to be entitled to a review of their convictions without payment of costs. We believe this interpretation of the statute is not required by reason nor is it consistent with the sound administration of criminal justice in the federal courts. We hold, instead, that 'good faith' in this context must be judged by an objective standard. We consider a defendant's good faith in this type of case demonstrated when he seeks appellate review of any issue not frivolous. In so doing, we note that if in forma pauperis litigation is attempted for reasons that may genuinely be characterized as the litigant's 'bad faith,' express authority exists in 28 U.S.C. § 1915(d), 28 U.S.C.A. § 1915(d) for dismissal of the cause as frivolous.9
6
If the District Court finds the application is not in good faith, and therefore denies leave to appeal in forma pauperis, the defendant may seek identical relief from the Court of Appeals.10 In considering such an application addressed to it, the Court of Appeals will have before it what is usually the pro se pleading of a layman and the certificate of a district judge that the applicant lacks 'good faith' in seeking appellate review. The District Court's certificate is not conclusive, although it is, of course, entitled to weight.11 However, we have recognized that the materials before the Court of Appeals at this stage of the proceedings are generally inadequate for passing upon the defendant's application. Nevertheless, if from the face of the papers he has filed, it is apparent that the applicant will present issues for review not clearly frivolous, the Court of Appeals should then grant leave to appeal in forma pauperis, appoint counsel to represent the appellant and proceed to consideration of the appeal on the merits in the same manner that it considers paid appeals. If, on the other hand, the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant's application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing that the District Court's certificate of lack of 'good faith' is in error and that leave to proceed with the appeal in forma pauperis should be allowed.12 If, with such aid, the applicant then presents any issue for the court's consideration not clearly frivolous, leave to proceed in forma pauperis must be allowed.
7
In so holding we have been impelled by considerations beyond the corners of 28 U.S.C. § 1915, 28 U.S.C.A. § 1915, considerations that it is our duty to assure to the greatest degree possible, within the statutory framework for appeals created by Congress, equal treatment for every litigant before the bar.13 We have expressed this view in a case comparable to the one before us here by holding that
8
'(u)nless the issues raised (by the indigent seeking leave to appeal in forma pauperis) are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, Fed.Rules Crim.Proc. 39(a), 18 U.S.C.A., the request of an indigent for leave to appeal in forma pauperis must be allowed.' Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060.
9
The point of equating the test for allowing a pauper's appeal to the test for dismissing paid cases, is to assure equality of consideration for all litigants. The equation is intended to place the burdens of proof and persuasion in all cases on the same party in these cases, on the Government. Since our statutes and rules make an appeal in a criminal case a matter of right, the burden of showing that that right has been abused through the prosecution of frivolous litigation should, at all times, be on the party making the suggestion of frivolity. It is not the burden of the petitioner to show that his appeal has merit, in the sense that he is bound, or even likely, to prevail ultimately. He is to be heard, as is any appellant in a criminal case, if he makes a rational argument on the law or facts. It is the burden of the Government, in opposing an attempted criminal appeal in forma pauperis, to show that the appeal is lacking in merit, indeed, that it is so lacking in merit that the court would dismiss the case on motion of the Government, had the case been docketed and a record been filed by an appellant able to afford the expense of complying with those requirements.14 If it were the practice of a Court of Appeals to screen the paid appeals on its docket for frivolity, without hearing oral argument, reviewing a record of the trial proceedings or considering full briefs, paupers could, of course, be bound by the same rules. But, if the practice of the Court of Appeals is to defer rulings on motions to dismiss paid appeals until the court has had the benefit of hearing argument and considering briefs and an adequate record, we hold it must no less accord the poor person the same procedural rights.
10
Two additional factors have relevance to our view of the proper disposition of motions for leave to perfect criminal appeals in forma pauperis. These factors are the foundation for Rule 39(d) of the Federal Rules of Criminal Procedure, specifying that preference shall be given by the Courts of Appeals to criminal cases. This Rule, first, acknowledges the importance to the sovereign, to the accused and to society of a criminal prosecution. When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.15 Second, the preference to be accorded criminal appeals recognizes the need for speedy disposition of such cases. Delay in the final judgment of conviction, including its appellate review, unquestionably erodes the efficacy of law enforcement.
11
Both of these considerations are particularly pertinent to criminal appeals in forma pauperis. Statistics compiled in the court below illustrate the undeniable fact that as many meritorious criminal cases come before that court through applications for leave to proceed in forma pauperis as on the paid docket, and that no a priori justification can be found for considering them, as a class, to be more frivolous than those in which costs have been paid.16 Even-handed administration of the criminal law demands that these cases be given no less consideration than others on the courts' dockets. Particularly since litigants in forma pauperis may, in the trial court, have suffered disadvantages in the defense of their cases inherent in their impecunious condition, is appellate review of their cases any less searching than that accorded paid appeals inappropriate. Indigents' appeals from criminal convictions cannot be used as a convenient valve for reducing the pressures of work on the courts. If there are those who insist on pursuing frivolous litigation, the courts are not powerless to dismiss or otherwise discourage it. But if frivolous litigation exists, we are not persuaded that it is concentrated in this narrow, yet vital, area of judicial duty.
12
Similarly, statistics demonstrate the inevitable delay that surrounds a procedure in which the courts give piecemeal attention to the series of motions that indigents must make before a final adjudication of the merits of their cases is reached. Delays described in years between trial and final decision in criminal cases are the unhappy result of separate considerations of motions for the appointment of counsel, for the preparation of a transcript of the trial proceedings and, ultimately, for the leave to appeal in forma pauperis. The case before us illustrates the point. Petitioner was indicted on June 16, 1958, for offenses alleged to have been committed in early December 1957. He was first tried and convicted in December 1958. Leave to appeal in forma pauperis was granted by the District Court, and on June 23, 1959, the Court of Appeals reversed the conviction and remanded the case for a new trial. 106 U.S.App.D.C. 275, 272 F.2d 504. In October 1959, new counsel was appointed by the District Court to represent petitioner at his second trial. Pre-trial motions were argued in the District Court in December 1959 and January 1960, and petitioner's trial took place in the first week of March 1960. Petitioner was convicted and then sentenced on March 11, 1960. On March 22, 1960, the District Court denied an application for leave to appeal in forma pauperis. An application for leave to appeal in forma pauperis was then directed to the Court of Appeals, and was filed in that court on April 15, 1960. On April 20, that court appointed counsel to represent petitioner, and on June 15, 1960, counsel filed a 30-page memorandum in support of the petition for leave to appeal. The following day, the Government answered with a memorandum stating that it believed it appropriate for the court to order the preparation of a transcript at government expense before ruling on the petition for leave to appeal. Petitioner objected to this procedure on the grounds that his memorandum sufficiently indicated that non-frivolous issues were present in his case and that further delay in allowing the appeal was, therefore, unwarranted. On July 1, 1960, the Court of Appeals ordered the preparation of a transcript at the expense of the United States. The transcript became available August 15, 1960, and the Government's opposition to petitioner's application for leave to appeal in forma pauperis was filed, pursuant to an extension of time granted by the court, on September 2, 1960. The Government, misconceiving the issue as we understand it, claimed the points sought to be raised were 'not sufficiently substantial' to warrant an appeal in forma pauperis; it did not suggest the appeal sought was 'frivolous.' Petitioner filed a reply memorandum on September 8. On November 5, 1960, the court, one judge dissenting, denied the petition for leave to appeal in forma pauperis. The petition for certiorari was filed in this Court on November 16, 1960, and was granted on June 19, 1961. 366 U.S. 959, 81 S.Ct. 1926, 6 L.Ed.2d 1252. We heard oral argument in December 1961, and our present disposition of the case, remanding it for reconsideration by the Court of Appeals on an intermediary step, still far from the end of petitioner's course through the courts on his original conviction, is now ordered more than four years after the commission of the offenses for which petitioner was tried and more than two years from the date of the trial and judgment petitioner seeks to have reviewed.17
13
In the light of this delay, it is not surprising that petitioner asks us to reach the merits of his case immediately. However, delay alone, unfortunate though it is, is not sufficient cause to bypass the orderly processes of judicial review. Contrary to the Government's assertion here that petitioner has already received what amounts to plenary review of the conviction following his second trial, we hold petitioner has not yet received the benefits of presenting either oral argument or full briefs on the merits of his claims to the court first charged with the supervision of the trial court.18 The memoranda prepared by counsel in support of petitioner's application for leave to appeal in forma pauperis were not intended to be, nor are they rightly considered as, full appeallate briefs. But they do serve to demonstrate that petitioner sought consideration of issues that it would be difficult for an appellate court to consider so patently frivolous as to require a dismissal of petitioner's case without full briefing or argument. In so saying, we need not, and do not, express any opinion on whether petitioner's conviction should ultimately be affirmed or reversed. We only hold that taken as a whole, petitioner's various claims cannot justify the summary disposition of his case ordered below.
14
The first of numerous claims asserted by the petitioner is that the indictment against him was procured through the use of perjured testimony before the grand jury. This Court has not yet decided whether such a charge, if proven, would require the reversal of a criminal conviction based upon an indictment returned by a grand jury hearing the perjury. But we have granted certiorari and given full consideration to related issues in other cases. See, e.g., Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (hearsay evidence considered by grand jury); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (illegally seized evidence considered by grand jury); Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (alleged inflammatory publicity surrounding state grand jury deliberations).
15
Petitioner also claims that he has been unable to prove his charge that prejured testimony was presented to the grand jury because of the refusal of the courts below to permit him to examine the transcript of the grand jury's proceedings. Again, although in the particular context of this case access to the normally secret minutes of the grand jury may ultimately be held to have been properly denied, recent volumes of the United States Reports and the Federal Reporter include a number of opinions in which the extent of the secrey normally attached to grand jury minutes has been explored.19
16
A number of other arguable claims were also made by petitioner to support his application for leave to appeal. But we believe those mentioned would alone have warranted the allowance of an appeal in forma pauperis. They meet the test of being sufficiently reasonable to withstand a claim that their frivolity is so manifest that they merit no further argument or consideration, and that dismissal of petitioner's case is, therefore, in order. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
17
It is so ordered.
18
Judgment of Court of Appeals vacated and case remanded with directions.
19
Mr. Justice FRANKFURTER took no part in the decision of this case.
20
Mr. Justice WHITE took no part in the consideration or decision of this case.
21
Mr. Justice STEWART, with whom Mr. Justice BRENNAN agrees, concurring.
22
In joining the opinion and judgment of the Court, I think it appropriate to add a few words. The rule of Ellis v. United States is a simple one. An appeal in forma pauperis must be allowed in a criminal case 'unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant.' 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060. The difficulties which the Courts of Appeals have encountered in applying this simple and practical test are largely, I think, of their own making.
23
These difficulties may stem in part from a failure to consider the in forma pauperis statute in the context of the over-all scheme governing criminal appeals. Our statutes and rules make an appeal in a criminal case a matter of right. The provisions governing appeals in forma pauperis are not to be read as diluting that right by imposing a more stringent test of merit. Rather, 28 U.S.C. § 1915, 28 U.S.C.A. § 1915 provides at most a device for advance screening of appeals which, if paid, would upon motion be dismissed before argument as frivolous. The only justification for such a preliminary screening is the absence of the built-in pecuniary brake upon frivolous appeals which is present in nonindigent cases. There is no other difference between paid and unpaid appeals. In both, the burden of showing that the right to appeal has been abused is on the party making the suggestion.
24
It has been said that a District Court's certification that an appeal is not taken in good faith is entitled to great weight. Johnson v. United States, 352 U.S. 565, 566, 77 S.Ct. 550, 551, 1 L.Ed.2d 593. Nevertheless, if a District Court has denied leave to appeal in forma pauperis, the Court of Appeals has the ultimate responsibility of deciding for itself whether the appeal is frivolous. Justice demands an independent and objective assessment of a district judge's appraisal of his own conduct of a criminal trial. Anything less would impose a disability upon indigent defendants far greater than that contemplated by the preliminary screening provision which § 1915 permits. The statutory safeguard against overindulgence in free frivolous appeals cannot be allowed to impinge upon the fundamental right of every litigant, rich or poor, to equal consideration before the courts.
25
When a Court of Appeals chooses to utilize the preliminary screening device permitted by § 1915, difficulties of the kind evident in this case frequently arise. The bare application for leave to appeal in forma pauperis seldom furnishes sufficient material for evaluating the weight of the issues involved. For this reason, we have held that in such cases a Court of Appeals must provide the applicant with the assistance of counsel and with a record of sufficient completeness to give him full opportunity to show that the appeal is in 'good faith.' Johnson v. United States, supra; Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529. In the course of such proceedings, however, experience has shown that there may be a tendency to lose sight of the precise issue before the court at this point—whether the appeal is so frivolous that it would be dismissed even if all the fees had been paid. Obviously arguments concerning the weight of the issues raised by an appeal are difficult to disengage from arguments dealing with the ultimate merits of these same issues. Understandably and commendably, counsel for indigent defendants often exert every effort to prove the substantial nature of their clients' claims—an exertion of energy which draws a similar effort from government counsel. The product of these forces is a procedure which may bear close superficial resemblance to the appeal itself.
26
The result is that a Court of Appeals may come to think of these preliminary proceedings as tantamount to appeals on the merits, and may tend to decide whether or not to grant leave to appeal by appraising the entire case in terms of whether or not reversible error appears. By the same token, when leave to appeal has been denied, and the case has come here, the Government has argued in the past, as it argues in this case, that the preliminary screening procedure was itself the equivalent of an affirmance on the merits. See Lurk v. United States, 366 U.S. 712, 81 S.Ct. 1229, 6 L.Ed.2d 845.
27
This attempted conversion of the proceedings to determine good faith into a truncated substitute for appeal distorts the purpose of § 1915, and if accepted, would raise serious questions of due process. The filing of memoranda in support of an application for leave to appeal is not an appeal. The merits of the ultimate issues are not logically involved at this point, but only the weight of those issues. Appellate briefs are not written or submitted. There is no oral argument. The court's mode of considering such memoranda, as a matter of internal machinery, may markedly differ from the process employed in the decision of cases actually on appeal. For all these reasons the interim proceeding permitted by § 1915 cannot itself be deemed to constitute the appeal to which a person convicted of crime in the federal courts is entitled.
28
In addition to the danger of equating the 'good faith' determination with the appeal itself, there are other disadvantages inherent in compelling the parties to go through the preliminary procedure permitted by § 1915. It is a serious imposition upon appointed counsel to require dissipation of energy and time in preliminary skirmishing. Moreover, the delay occasioned by this entended interim proceeding is itself offensive to the ideal of speedy administration of criminal justice.
29
The primary responsibility for containing within limited bounds the separate 'good faith' proceeding permitted by § 1915 rests upon those Courts of Appeals which choose to utilize this system of dealing with in forma pauperis appeals. While I would not deny great latitude to the various circuits autonomously to devise their own procedures consistent with their appraisal of local conditions and needs, the courts' duty in this area can be properly achieved only by keeping in mind the very limited test of 'good faith' which the Ellis case established.
30
This suggests that each Court of Appeals might well consider whether its task could not be more expeditiously and responsibly performed by simply granting applications to appeal from criminal convictions in forma pauperis as a matter of course, and appointing counsel to brief and argue each case on the merits. The Government would then be free in any case to file before argument a motion to dismiss the appeal as frivolous, as every appellee is always free to do. In the absence of such a motion an appeal which after argument appeared clearly without merit could be expeditiously disposed of by summary affirmance, in the secure knowledge that all the issues had been fully canvassed. This procedure, it seems to me, would not only save the time and energy of court and counsel, but would obviate the many difficulties which, as the present case shows, the complicated two-step system is all too likely to produce.
31
Mr. Justice CLARK, with whom Mr. Justice HARLAN joins, dissenting.
I.
32
Congress has provided that no indigent appeal may be taken 'if the trial court certifies in writing that it is not taken in good faith,' i.e., is frivolous. 28 U.S.C. § 1915(a), 28 U.S.C.A. § 1915(a). With the opinion today the Court for all practical purposes repeals this statute by placing the burden on the Government to sustain such a certification rather than on the indigent to overturn it. This position is a sub silentio reversal of our previous holding in Farley v. United States, 354 U.S. 521, 523, 77 S.Ct. 1371, 1372, 1 L.Ed.2d 1529 (1957), where we said that 'petitioner has not yet been afforded an adequate opportunity to show the Court of Appeals that his claimed errors are not frivolous * * *.' Accord, Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957).1 Moreover, the Court goes against a long line of cases holding that the trial judge's certificate of frivolity is entitled to 'great weight'—a rule which the opinion here notes but fails to recognize. If the finding is entitled to 'great weight,' in fact controlling weight in the absence of 'some showing that the certificate is made without warrant * * *,' Wells v. United States, 318 U.S. 257, 259, 63 S.Ct. 582, 584, 87 L.Ed. 746 (1943), how can it be said the Government has the burden of upholding it' The Court seems to say the burden is upon the Government because when it files a motion to dismiss in a nonindigent case it has the burden of showing frivolity. I submit the two are not at all analogous. In the case of paid appeals Congress has not provided for a determination by the trial court of whether the issues warrant further review, and to treat nonpaid appeals like paid appeals is to ignore such a provision in the statute governing indigent appeals.
33
The Court does not make clear on what grounds it bases its assumption that the Government has the burden of showing frivolity. It professes to act 'within the statutory framework for appeals created by Congress'; but it intimates that it is 'impelled by considerations beyond the corners of 28 U.S.C. § 1915, 28 U.S.C.A. § 1915,' and the touchstone of its opinion is a principle arising from cases based on the Equal Protection Clause of the Fourteenth Amendment. I do not believe, however, that a disparity in the burden of showing frivolity denies equal justice as between paid and nonpaid appeals. They both remain subject to the same peril. Congress has set up a special procedure which subjects every nonpaid appeal to an examination to determine if further briefing and oral argument are necessary. Such an examination in the case of paid appeals is left to the initiative of the court or the Government. This distinction does not give rise to a discrimination of constitutional proportions. As was pointed out in Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943), '(t)he Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. * * * Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent.' I see no constitutional impediment to asking one who seeks a free ride to show that he is not just a joyrider. Although a government that affords appellate review must pay the cost of meritorious indigent appeals, surely it may protect itself from frivolous ones (which incidentally in numbers overwhelmingly predominate) being 'subsidized and public moneys * * * needlessly spent.' Griffin v. Illinois, 351 U.S. 12, 24, 76 S.Ct. 585, 593, 100 L.Ed. 891 (1956) (concurring opinion).
II.
34
The Court holds that petitioner is entitled to oral argument in the Court of Appeals on new briefs. An examination of the record shows that the action of the Court of Appeals was on the basis of a complete transcript and extensive briefs filed by counsel. With due deference to the Court's suggestion that these briefs were only preliminary, I find them to be substantially similar in both bulk and substance to the ones filed here on which petitioner asks for a decision on the merits. Upon such presentation the Court of Appeals found itself satisfied that petitioner's conviction was proper. It is true that no oral argument was permitted. However, having come to the conclusion that the case had no merit, the court had to put a stop to the review proceeding. This is true whether the appeal is paid or nonpaid. See United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946). We adjudicate most of our appeals in the same manner, i.e., by dismissing or affirming on the briefs without argument. Inasmuch as the case had arisen within the procedural confines of appeals in forma pauperis, the Court of Appeals simply denied leave to appeal. It could have granted leave to proceed and then summarily affirmed or dismissed the appeal under Rule 39(a), Fed.Rules Crim.Proc. I see no substantial distinction between the two dispositions.
35
The Court, however, is remanding the case for further review proceedings because it has concluded that at least two of petitioner's claims are not frivolous and that the Court of Appeals therefore erred in not allowing the review to run its full length. The Court in reaching this conclusion has, in my view, misplaced the burden on the issue of frivolity, but even assuming arguendo that petitioner's contentions are not frivolous, I cannot agree to the fruitless approach the Court has taken.
36
To be sure, frivolity or some analogous standard delimits those appeals, paid or nonpaid, which can be decided without oral argument. However, it would seem that any error by a Court of Appeals in evaluating frivolity upon such a full presentation as was had below is often not only incorrectable but harmless. Concededly, this Court has of late consistently remanded cases in which a Court of Appeals has mistakenly characterized contentions as frivolous. Experience has shown this tack to be unsatisfactory, and perhaps it is now time to re-evaluate our approach.
37
This is not to say that we should do a complete turn about and never remand a case for further review. What I am suggesting is that we give substance to the congressional mandate and yet analyze, inter alia, the thoroughness of the review below, the character of the issues raised, the beneficiality of further action by a lower court, and the strength or weakness of the contentions made. Applying such criteria to the present case, I am convinced that to remand this case will only compel the lower court to go through wasteful formalities to the detriment of its consideration of other appeals and put off to another day action by this Court.2 The Court speaks of long delays, but by remanding it appears to have contributed to the very evil which it seeks to eliminate. I would follow the teaching of Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), and Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), and decide the merits of petitioner's contentions now. I therefore dissent.
1
During the past five Terms of the Court, we have found it necessary to vacate and remand for reconsideration 14 cases in which a Court of Appeals has applied an erroneous standard in passing on an indigent's application for leave to appeal. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593; Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529; Delbridge v. United States, 354 U.S. 906, 77 S.Ct. 1297, 1 L.Ed.2d 1425; Edwards v. United States, 355 U.S. 36, 78 S.Ct. 124, 2 L.Ed.2d 72; Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060; Hill v. United States, 356 U.S. 704, 78 S.Ct. 1139, 2 L.Ed.2d 1145; Cash v. United States, 357 U.S. 219, 78 S.Ct. 1365, 2 L.Ed.2d 1361; Hansford v. United States, 357 U.S. 578, 78 S.Ct. 1394, 2 L.Ed.2d 1548; Kitchens v. United States, 358 U.S. 42, 79 S.Ct. 70, 3 L.Ed.2d 45; Smith v. United States, 358 U.S. 281, 79 S.Ct. 322, 3 L.Ed.2d 299; Smith v. United States, 361 U.S. 13, 80 S.Ct. 92, 4 L.Ed.2d 52; Smith v. United States, 361 U.S. 38, 80 S.Ct. 141, 4 L.Ed.2d 112; McAbee v. United States, 361 U.S. 537, 80 S.Ct. 615, 4 L.Ed.2d 539; Lurk v. United States, 366 U.S. 712, 81 S.Ct. 1229, 6 L.Ed.2d 845. See also Page v. United States, 359 U.S. 116, 79 S.Ct. 730, 3 L.Ed.2d 674; Willis v. United States, 362 U.S. 216, 80 S.Ct. 667, 4 L.Ed.2d 667. Cf. Simcox v. Madigan, 366 U.S. 765, 81 S.Ct. 1669, 6 L.Ed.2d 854; Ragan v. Cox, 369 U.S. 437, 82 S.Ct. 948.
2
28 U.S.C. §§ 1291, 1294, 28 U.S.C.A. §§ 1291, 1294; Fed.Rules Crim.Proc. 37(a), 18 U.S.C.A. Cf. Carroll v. United States, 354 U.S. 394, 400—401, 77 S.Ct. 1332, 1336—1337, 1 L.Ed.2d 1442.
3
Fed.Rules Crim.Proc. 37(a); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259.
4
Fed.Rules Crim.Proc. 39(c) (record on appeal to be docketed in Court of Appeals within 40 days of filing of notice of appeal); Rules of the Court of Appeals for the District of Columbia Circuit 33(b) (application for copies of stenographic transcript of trial proceedings to be made within 3 days of filing of notice of appeal, or within 10 days if appellant is incarcerated), 33(c) (appellant's designation of record on appeal to be filed within 20 days of filing notice of appeal), 18(a) (appellant's briefs due within 25 days of filing record on appeal), 28 U.S.C.A.
5
Although the timely filing of a notice of appeal is a jurisdictional prerequisite for perfecting an appeal, United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259, a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal, has been used to preserve the jurisdiction of the Courts of Appeals. See, e.g., Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (notice of appeal filed prior to judgment); O'Neal v. United States, 272 F.2d 412 (C.A.5th Cir.) (appeal bond filed in District Court); Tillman v. United States, 268 F.2d 422 (C.A.5th Cir.) (application for leave to appeal in forma pauperis filed in District Court); Belton v. United States, 104 U.S.App.D.C. 81, 259 F.2d 811 (letter written to District Court); Williams v. United States, 88 U.S.App.D.C. 212, 188 F.2d 41 (notice of appeal delivered to prison officials for forwarding to District Court). See also Jordan v. United States District Court, 98 U.S.App.D.C. 160, 233 F.2d 362, vacated on other grounds sub nom. Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (mandamus petition filed in Court of Appeals held equivalent of notice of appeal from judgment in proceeding pursuant to 28 U.S.C. § 2255, 28 U.S.C.A. § 2255); West v. United States, 94 U.S.App.D.C. 46, 222 F.2d 774 (petition for leave to appeal in forma pauperis filed in Court of Appeals held equivalent in § 2255 case).
Further, Fed.Rules Crim.Proc. 37(a)(2) expressly provides:
'When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.'
The salutary purpose of this provision may, however, not be achieved when the defendant appears at sentencing with counsel. If neither counsel, whether retained or court appointed, nor the district judge imposing sentence, notifies the defendant of the requirement for filing a prompt notice of appeal, the right of appeal may irrevocably be lost. Cf. Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858, cert. granted, 365 U.S. 810, 81 S.Ct. 702, 5 L.Ed.2d 690, cert. dismissed as improvidently granted, 368 U.S. 139, 140—141, 82 S.Ct. 235, 236—237, 7 L.Ed.2d 184 (dissent); Lewis and Simms v. United States, 107 U.S.App.D.C. 353, 278 F.2d 33; 111 U.S.App.D.C. 13, 294 F.2d 209.
6
The fee for docketing an appeal in the Court of Appeals is $25. Stenographic transcripts in the federal courts cost $0.65 per page for the first copy, and $0.30 per page for additional copies. Transcripts in excess of 100 pages are not uncommon. The cost of printing briefs, records, and appendices, as illustrated by the present charge for printing records in this Court, may be $3.80 per page or more. The printing requirements are generally waived in appeals proceeding in forma pauperis. Cf. Fed.Rules Civ.Proc. 75(m), 28 U.S.C.A. But if, in such cases, printing is required by the Court of Appeals, the expense is borne by the United States. 28 U.S.C. § 1915(b), 28 U.S.C.A. § 1915(a).
7
The statute appears to contemplate an initial application to the District Court by providing 'An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.' 28 U.S.C. § 1915(a), 28 U.S.C.A. § 1915(a). And this is the manner in which the statute has been interpreted. See, e.g., West v. United States, 94 U.S.App.D.C. 46, 222 F.2d 774; Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807; Murrey v. United States, 134 F.2d 956 (C.A.8th Cir.); Bayless v. Johnston, 127 F.2d 531 (C.A.9th Cir.). And see Rules of the Court of Appeals for the District of Columbia Circuit 41(a). But cf. Jordan v. United States District Court, 98 U.S.App.D.C. 160, 163, 233 F.2d 362, 365 note 3, vacated on other grounds sub nom. Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114.
8
In discussing the 'good faith' requirement of what is now 28 U.S.C. § 1915(a), 28 U.S.C.A. § 1915(a). Senator Bacon of the Senate Judiciary Committee said:
'When a judge has heard a case and it is about to be carried to an appellate court, he * * * is in a position to judge whether it is a case proceeding captiously, or viciously, or with prejudice, or from any other improper motive, or whether the litigant is proceeding in good faith.' 45 Cong.Rec. 1533 (1910).
However, he was discussing primarily civil suits. And see Jaffe v. United States, 246 F.2d 760 (C.A.2d Cir.) (civil case). But in criminal cases cf. Cash v. United States, 104 U.S.App.D.C. 265, 269, 261 F.2d 731, 735, vacated, 357 U.S. 219, 78 S.Ct. 1365, 2 L.Ed.2d 1361; Parsell v. United States, 218 F.2d 232 (C.A.5th Cir.). See also United States v. Visconti, 261 F.2d 215 (C.A.2d Cir.) (proceeding under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255).
9
And see Fed.Rules Crim.Proc. 39(a); Fed.Rules Civ.Proc. 12(f).
10
28 U.S.C. § 1915, 28 U.S.C.A. § 1915 expressly authorizes '(a)ny court of the United States' to permit a litigant to proceed in forma pauperis. Thus it is not necessary to consider the application to the Court of Appeals a separate 'appeal' from the order of the District Court denying relief, to which the time requirements of the Federal Rules of Civil Procedure would be applicable as they are to appeals in other ancillary post-conviction proceedings. Cf. Roberts v. United States District Court, 339 U.S. 844, 845, 70 S.Ct. 954, 955, 94 L.Ed. 1326. The court below has, by its own Rule 41(b), required all persons seeking leave to appeal a judgment of the District Court in forma pauperis, to apply for such leave from the Court of Appeals within 30 days of the date on which their applications for such relief from the District Court have been denied. The instant petitioner has complied with this Rule.
11
Johnson v. United States, 352 U.S. 565, 566, 77 S.Ct. 550, 551, 1 L.Ed.2d 593.
12
Johnson v. United States, 352 U.S. 565, 566, 77 S.Ct. 550, 551, 1 L.Ed.2d 593. See also Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529; Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060; Whitt v. United States, 104 U.S.App.D.C. 1, 259 F.2d 158.
13
Cf. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, in which we were presented with a state law requiring defendants in all criminal cases in that State to furnish a bill of exceptions to the appellate court in which they sought review of their convictions. The bill of exceptions was difficult, if not impossible, to prepare without a stenographic transcript of the trial proceedings. Persons sentenced to death received transcripts at the expense of the State; all others were required to purchase a transcript. We found the failure of the State to provide for appellate review for indigents in noncapital cases, when such review was available for all defendants able to purchase transcripts, an 'invidious discrimination' inconsistent with the guarantees of due process and equal protection of the laws of the Fourteenth Amendment. See also Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; Ross v. Schneckloth, 357 U.S. 575, 78 S.Ct. 1387, 2 L.Ed.2d 1547; Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209; Douglas v. Green, 363 U.S. 192, 80 S.Ct. 1048, 4 L.Ed.2d 1142; McCrary v. Indiana, 364 U.S. 277, 80 S.Ct. 1410, 4 L.Ed.2d 1706; Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39, in which comparable state rules and practices, effectively limiting the poor person's access to courts ostensibly open to all, similarly have been found vulnerable.
14
See Brown v. United States, 110 U.S.App.D.C. 310, 293 F.2d 149; United States v. Nudelman, 207 F.2d 109 (C.A.3d Cir.). Cf. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Smith v. United States, 105 U.S.App.D.C. 414, 267 F.2d 691; Young v. United States, 105 U.S.App.D.C. 415, 267 F.2d 692; United States v. Peltz, 246 F.2d 537 (C.A.2d Cir.).
15
Justice Schaefer of the Supreme Court of Illinois, in the 1956 Oliver Wendell Holmes Lecture at the Harvard Law School, reprinted as Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 26 (1956).
16
Jones v. United States, 105 U.S.App.D.C. 326, 328, 266 F.2d 924, 926. There, Judge Bazelon pointed out that of 86 criminal appeals considered by the Court of Appeals within a period of approximately 15 months, 18 were prepaid, while 68 were considered after either the District Court or the Court of Appeals had granted leave to appeal in forma pauperis. Of this total, 14 of the prepaid appeals resulted in a judgment affirming the conviction; a similar majority of the paupers' appeals resulted in affirmance. However, during a comparable span between September 1, 1957, and February 28, 1959, 24 criminal appeals were decided by the Court of Appeals in which the District Court had initially denied leave to appeal in forma pauperis. In 11 of those 24 cases, reversals were ordered, and in 6 more, one of the three judges of the court's panel dissented from the judgment affirming the conviction. During those same 18 months, the court granted 31 of 47 petitions for leave to take a direct appeal in forma pauperis from a conviction, and this Court subsequently reversed the denials of leave to appeal ordered in the cases of 5 of the 16 unsuccessful applicants in the court below.
17
The instant case is not unique in this regard. See, e.g., Johnson: Indicted (March 1956), tried (May 1956), appeal in forma pauperis denied, 238 F.2d 565 (C.A.2d Cir.1956), vacated, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), conviction affirmed on the merits, 254 F.2d 175, petition for certiorari dismissed per stipulation of parties, 357 U.S. 933, 78 S.Ct. 1378, 2 L.Ed.2d 1369 (June 1958); Farley: Indicted (December 1955), tried (May 1956), application for leave to appeal in forma pauperis remanded to District Court, 238 F.2d 575 (C.A.2d Cir.1956), appeal in forma pauperis denied, 242 F.2d 338, vacated, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957), remanded to District Court for settling transcript (December 1960), appeal in forma pauperis granted by District Court (May 1961), conviction affirmed on the merits, 292 F.2d 789 (1961), cert. denied, 369 U.S. 857, 82 S.Ct. 937 (April 1962); Ellis: Indicted (April 1956), tried (September 1956), appeal in forma pauperis denied, 101 U.S.App.D.C. 386, 249 F.2d 478 (1957), vacated, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), conviction affirmed on the merits, 105 U.S.App.D.C. 86, 264 F.2d 372, cert. denied, 359 U.S. 998, 79 S.Ct. 1129, 3 L.Ed.2d 986 (May 1959), motion for leave to file petition for rehearing denied, 361 U.S. 945, 80 S.Ct. 407, 4 L.Ed.2d 365 (January 1960).
18
This argument was also presented by the Government, and then rejected by us, in Lurk v. United States, 366 U.S. 712, 81 S.Ct. 1229, 6 L.Ed.2d 845.
19
See, e.g., Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399—400, 79 S.Ct. 1237, 1240—1241, 3 L.Ed.2d 1323; De Binder v. United States, 110 U.S.App.D.C. 244, 246, 292 F.2d 737, 739; United States v. Rose, 215 F.2d 617, 628—630 (C.A.3d Cir.); Parr v. United States, 265 F.2d 894, 901—904 (C.A.5th Cir.), reversed on other grounds, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277. Cf. United States v. Procter & Gamble Co., 356 U.S. 677, 682—684, 78 S.Ct. 983, 986—987, 2 L.Ed.2d 1077. See Louisell, Criminal Discovery: Dilemma Real or Apparent? 49 Calif.L.Rev. 56, 68—71 (1961); Note, Inspection of Grand Jury Minutes by Criminal Defendants, 1961 Wash.U.L.Q. 382.
1
Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), is inapposite. There the Court was concerned with the standard governing the allowance of appeals in forma pauperis, not with where rests the burden of showing frivolity in the face of a certification by the trial court.
2
For a case in which a similar warning was sounded, see Lurk v. United States, 366 U.S. 712, 81 S.Ct. 1229, 6 L.Ed.2d 845 (1961) (dissenting opinion). Subsequent events have shown this admonition to be words of wisdom indeed. See 111 U.S.App.D.C. 238, 296 F.2d 360, certiorari granted, 368 U.S. 815, 82 S.Ct. 110, 7 L.Ed.2d 23. (For subsequent decision of this Court see 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671.)
| 12
|
369 U.S. 469
82 S.Ct. 894
8 L.Ed.2d 44
DAIRY QUEEN, INC., Petitioner,v.Hon. Harold K. WOOD, Judge, et al.
No. 244.
Argued Feb. 19 and 20, 1962.
Decided April 30, 1962.
Michael H. Egnal, Philadelphia, Pa., for petitioner.
Owen J. Ooms, Chicago, Ill., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
The United States District Court for the Eastern District of Pennsylvania granted a motion to strike petitioner's demand for a trial by jury in an action now pending before it on the alternative grounds that either the action was 'purely equitable' or, if not purely equitable, whatever legal issues that were raised were 'incidental' to equitable issues, and, in either case, no right to trial by jury existed.1 The petitioner then sought mandamus in the Court of Appeals for the Third Circuit to compel the district judge to vacate this order. When that court denied this request without opinion, we granted certiorari because the action of the Court of Appeals seemed inconsistent with protections already clearly recognized for the important constitutional right to trial by jury in our previous decisions.2
2
At the outset, we may dispose of one of the grounds upon which the trial court acted in striking the demand for trial by jury—that based upon the view that the right to trial by jury may be lost as to legal issues where those issues are characterized as 'incidental' to equitable issues—for our previous decisions make it plain that no such rule may be applied in the federal courts. In Scott v. Neely, decided in 1891, this Court held that a court of equity could not even take jurisdiction of a suit 'in which a claim properly cognizable only at law is united in the same pleadings with a claim for equitable relief.'3 That holding, which was based upon both the historical separation between law and equity and the duty of the Court to insure 'that the right to a trial by a jury in the legal action may be preserved intact,'4 created considerable inconvenience in that it necessitated two separate trials in the same case whenever that case contained both legal and equitable claims. Consequently, when the procedure in the federal courts was modernized by the adoption of the Federal Rules of Civil Procedure in 1938, 28 U.S.C.A., it was deemed advisable to abandon that part of the holding of Scott v. Neely which rested upon the separation of law and equity and to permit the joinder of legal and equitable claims in a single action. Thus Rule 18(a) provides that a plaintiff 'may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party.' And Rule 18(b) provides: 'Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.'
3
The Federal Rules did not, however, purport to change the basic holding of Scott v. Neely that the right to trial by jury of legal claims must be preserved.5 Quite the contrary, Rule 38(a) expressly reaffirms that constitutional principle, declaring: 'The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.' Nonetheless, after the adoption of the Federal Rules, attempts were made indirectly to undercut that right by having federal courts in which cases involving both legal and equitable claims were filed decide the equitable claim first. The result of this procedure in those cases in which it was followed was that any issue common to both the legal and equitable claims was finally determined by the court and the party seeking trial by jury on the legal claim was deprived of that right as to these commonissues. This procedure finally came before us in Beacon Theatres, Inc. v. Westover,6 a case which, like this one, arose from the denial of a petition for mandamus to compel a district judge to vacate his order striking a demand for trial by jury.
4
Our decision reversing that case not only emphasizes the responsibility of the Federal Courts of Appeals to grant mandamus where necessary to protect the constitutional right to trial by jury but also limits the issues open for determination here by defining the protection to which that right is entitled in cases involving both legal and equitable claims. The holding in Beacon Theatres was that where both legal and equitable issues are presented in a single case, 'only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.'7 That holding, of course, applies whether the trial judge chooses to characterize the legal issues presented as 'incidental' to equitable issues or not.8 Consequently, in a case such as this where there cannot even be a contention of such 'imperative circumstances,' Beacon Theatres requires that any legal issues for which a trial by jury is timely and properly demanded be submitted to a jury. There being no question of the timeliness or correctness of the demand involved here, the sole question which we must decide is whether the action now pending before the District Court contains legal issues.
5
The District Court proceeding arises out of a controversy between petitioner and the respondent owners of the trademark 'DAIRY QUEEN' with regard to a written licensing contract made by them in December 1949, under which petitioner agreed to pay some $150,000 for the exclusive right to use that trademark in certain portions of Pennsylvania.9 The terms of the contract provided for a small initial payment with the remaining payments to be made at the rate of 50% of all amounts received by petitioner on sales and franchises to deal with the trademark and, in order to make certain that the $150,000 payment would be completed within a specified period of time, further provided for minimum annual payments regardless of petitioner's receipts. In August 1960, the respondents wrote petitioner a letter in which they claimed that petitioner had committed 'a material breach of that contract' by defaulting on the contract's payment provisions and notified petitioner of the termination of the contract and the cancellation of petitioner's right to use the trademark unless this claimed default was remedied immediately.10 When petitioner continued to deal with the trademark despite the notice of termination, the respondents brought an action based upon their view that a material breach of contract had occurred.
6
The complaint filed in the District Court alleged, among other things, that petitioner had 'ceased paying * * * as required in the contract;' that the default 'under the said contract * * * (was) in excess of $60,000.000;' that this default constituted a 'material breach' of that contract; that petitioner had been notified by letter that its failure to pay as alleged made it guilty of a material breach of contract which if not 'cured' would result in an immediate cancellation of the contract; that the breach had not been cured but that petitioner was contesting the cancellation and continuing to conduct business as an authorized dealer; that to continue such business after the cancellation of the contract constituted an infringement of the respondents' trademark; that petitioner's financial condition was unstable; and that because of the foregoing allegations, respondents were threatened with irreparable injury for which they had no adequate remedy at law. The complaint then prayed for both temporary and permanent relief, including: (1) temporary and permanent injunctions to restrain petitioner from any future use of or dealing in the franchise and the trademark; (2) an accounting to determine the exact amount of money owing by petitioner and a judgment for that amount; and (3) an injunction pending accounting to prevent petitioner from collecting any money from 'Dairy Queen' stores in the territory.
7
In its answer to this complaint, petitioner raised a number of defenses, including: (1) a denial that there had been any breach of contract, apparently based chiefly upon its allegation that in January 1955 the parties had entered into an oral agreement modifying the original written contract by removing the provision requiring minimum annual payments regardless of petitioner's receipts thus leaving petitioner's only obligation that of turning over 50% of all its receipts; (2) laches and estoppel arising from respondents' failure to assert their claim promptly, thus permitting petitioner to expend large amounts of money in the development of its right to use the trademark; and (3) alleged violations of the antitrust laws by respondents in connection with their dealings with the trademark. Petitioner indorsed upon this answer a demand for trial by jury in accordance with Rule 38(b) of the Federal Rules of Civil Procedure.11
8
Petitioner's contention, as set forth in its petition for mandamus to the Court of Appeals and reiterated in its briefs before this Court, is that insofar as the complaint requests a money judgment it presents a claim which is unquestionably legal. We agree with that contention. The most natural construction of the respondents' claim for a money judgment would seem to be that it is a claim that they are entitled to recover whatever was owed them under the contract as of the date of its purported termination plus damages for infringement of their trademark since that date. Alternatively, the complaint could be construed to set forth a full claim based upon both of these theories—that is, a claim that the respondents were entitled to recover both the debt due under the contract and damages for trademark infringement for the entire period of the alleged breach including that before the termination of the contract.12 Or it might possibly be construed to set forth a claim for recovery based completely on either one of these two theories—that is, a claim based solely upon the contract for the entire period both before and after the attempted termination on the theory that the termination, having been ignored, was of no consequence, or a claim based solely upon the charge of infringement on the theory that the contract, having been breached, could not be used as a defense to an infringement action even for the period prior to its termination.13 We find it unnecessary to resolve this ambiguity in the respondents' complaint because we think it plain that their claim for a money judgment is a claim wholly legal in its nature however the complaint is construed. As an action on a debt allegedly due under a contract, it would be difficult to conceive of an action of a more traditionally legal character.14 And as an action for damages based upon a charge of trademark infringement, it would be no less subject to cognizance by a court of law.15
9
The respondents' contention that this money claim is 'purely equitable' is based primarily upon the fact that their complaint is cast in terms of an 'accounting,' rather than in terms of an action for 'debt' or 'damages.' But the constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings. The necessary prerequisite to the right to maintain a suit for an equitable accounting, like all other equitable remedies, is, as we pointed out in Beacon Theatres, the absence of an adequate remedy at law.16 Consequently, in order to maintain such a suit on a cause of action cognizable at law, as this one is, the plaintiff must be able to show that the 'accounts between the parties' are of such a 'complicated nature' that only a court of equity can satisfactorily unravel them.17 In view of the powers given to District Courts by Federal Rule of Civil Procedure 53(b) to appoint masters to assist the jury in those exceptional cases where the legal issues are too complicated for the jury adequately to handle alone,18 the burden of such a showing is considerably increased and it will indeed be a rare case in which it can be met.19 But be that as it may, this is certainly not such a case. A jury, under proper instructions from the court, could readily determine the recovery, if any, to be had here, whether the theory finally settled upon is that of breach of contract, that of trademark infringement, or any combination of the two. The legal remedy cannot be characterized as inadequate merely because the measure of damages may necessitate a look into petitioner's business records.
10
Nor is the legal claim here rendered 'purely equitable' by the nature of the defenses interposed by petitioner. Petitioner's primary defense to the charge of breach of contract—that is, that the contract was modified by a subsequent oral agreement—presents a purely legal question having nothing whatever to do either with novation, as the district judge suggested, or reformation, as suggested by the respondents here. Such a defense goes to the question of just what, under the law, the contract between the respondents and petitioner is and, in an action to collect a debt for breach of a contract between these parties, petitioner has a right to have the jury determine not only whether the contract has been breached and the extent of the damages if any but also just what the contract is.
11
We conclude therefore that the district judge erred in refusing to grant petitioner's demand for a trial by jury on the factual issues related to the question of whether there has been a breach of contract. Since these issues are common with those upon which respondents' claim to equitable relief is based, the legal claims involved in the action must be determined prior to any final court determination of respondents' equitable claims.20 The Court of Appeals should have corrected the error of the district judge by granting the petition for mandamus. The judgment is therefore reversed and the cause remanded for further proceedings consistent with this opinion.
12
Reversed and remanded.
13
Mr. Justice STEWART concurs in the result.
14
Mr. Justice FRANKFURTER took no part in the decision of this case.
15
Mr. Justice WHITE took no part in the consideration or decision of this case.
16
Mr. Justice HARLAN, whom Mr. Justice DOUGLAS joins, concurring.
17
I am disposed to accept the view, strongly pressed at the bar, that this complaint seeks an accounting for alleged trademark infringement, rather than contract damages. Even though this leaves the complaint as formally asking only for equitable relief,* this does not end the inquiry. The fact that an 'accounting' is sought is not of itself dispositive of the jury trial issue. To render this aspect of the complaint truly 'equitable' it must appear that the substantive claim is one cognizable only in equity or that the 'accounts between the parties' are of such a 'complicated nature' that they can be satisfactorily unraveled only by a court of equity. Kirby v. Lake Shore & Michigan Southern R. Co., 120 U.S. 130, 134, 7 S.Ct. 430, 432, 30 L.Ed. 569. See 5 Moore, Federal Practice (1951), 198—202. It is manifest from the face of the complaint that the 'accounting' sought in this instance is not of either variety. A jury, under proper instructions from the court, could readily calculate the damages flowing from this alleged trademark infringement, just as courts of law often do in copyright and patent cases. Cf., e.g., Hartell v. Tilghman, 99 U.S. 547, 555, 25 L.Ed. 357; Arnstein v. Porter, 2 Cir., 154 F.2d 464; Bruckman v. Hollzer, 9 Cir., 152 F.2d 730.
18
Consequently what is involved in this case is nothing more than a joinder in one complaint of prayers for both legal and equitable relief. In such circumstances, under principles long since established, Scott v. Neely, 140 U.S. 106, 110, 11 S.Ct. 712, 35 L.Ed. 358, the petitioner cannot be deprived of his constitutional right to a jury trial on the 'legal' claim contained in the complaint.
19
On this basis I concur in the judgment of the Court.
1
McCullough v. Dairy Queen, Inc., 194 F.Supp. 686.
2
368 U.S. 874, 82 S.Ct. 121, 7 L.Ed.2d 76.
3
140 U.S. 106, 117, 11 S.Ct. 712, 716, 35 L.Ed. 358. See also Cates v. Allen, 149 U.S. 451, 13 S.Ct. 977, 37 L.Ed. 804, in which the principles expressed and applied in Scott v. Neely were explicitly reaffirmed.
4
Id., 140 U.S. at 110, 11 S.Ct. at 714.
5
'Subdivision (b) (of Rule 18) does not disturb the doctrine of those cases (Scott v. Neely and Cates v. Allen) but is expressly bottomed upon their principles. This is true because the Federal Rules abolish the distinction between law and equity, permit the joinder of legal and equitable claims, and safeguard the right to jury trial of legal issues.' 3 Moore, Federal Practice, 1831—1832.
6
359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988.
7
Id., at 510—511, 79 S.Ct. at 957.
8
'It is therefore immaterial that the case at bar contains a stronger basis for equitable relief than was present in Beacon Theatres. It would make no difference if the equitable cause clearly outweighed the legal cause so that the basic issue of the case taken as a whole is equitable. As long as any legal cause is involved the jury rights it creates control. This is the teaching of Beacon Theatres, as we construe it.' Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 5 Cir., 294 F.2d 486, 491.
9
There are two groups of respondents in this case in addition to the district judge who is formally a respondent by reason of the procedural posture of the case. H. A. McCullough and H. F. McCullough, a partnership doing business as McCulough's Dairy Queen, are the owners of the trademark and are entitled under the contract to payment for its use. B. F. Myers, R. J. Rydeen, M. E. Montgomery, and H. S. Dale are the original licensees under the contract through whom petitioner obtained its rights by assignment. This latter group of respondents joined in the action against petitioner on the grounds (1) that they would be responsible to the trademark owners if petitioner defaulted on its obligations under the contract, and (2) that they are themselves entitled to certain royalties under the assignment arrangement. Since the portion of the complaint involving this latter group raises no issues relevant to the question to be determined here which differ from those raised in that part of the complaint involving the trademark owners, the discussion can be restricted to the issues raised by the trademark owners and 'respondents' as used in this opinion will refer only to that group.
10
The full text of the letter sent to petitioner is as follows:
'This letter is to advise you that your failure to pay the amounts required in your contract with McCullough's Dairy Queen for the 'Dairy Queen' franchise for the State of Pennsylvania, as called for in your contract with your assignors, constitutes in our opinion a material breach of that contract.
'This will advise you that unless this material breach is completely satisfied for the amount due and owing, your franchise for 'Dairy Queen' in Pennsylvania is hereby cancelled.
'Copies of this letter are being sent to your assignors.'
11
'Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.'
12
This seems to be the construction given the complaint by the district judge in passing on the motion to strike petitioner's jury demand. See 194 F.Supp., at 687—688.
13
This last possible construction of the complaint, though accepted as the correct one in the concurring opinion, actually seems the least likely of all. For it seems plain that irrespective of whatever else the complaint sought, it did seek a judgment for the some $60,000 allegedly owing under the contract. Certainly, the district judge had no doubt that this was the case: 'Incidental to this relief, the complaint also demands the $60,000 now allegedly due and owing plaintiffs under the aforesaid contract.' 194 F.Supp., at 687.
14
'In the case before us the debt due the complainants was in no respect different from any other debt upon contract. It was the subject of a legal action only, in which the defendants were entitled to a jury trial in the federal courts.' Scott v. Neely, 140 U.S. 106, 110, 11 S.Ct. 712, 714, 35 L.Ed. 358. See also Thompson v. Railroad Companies, 6 Wall. 134, 18 L.Ed. 765.
15
Cf., e.g., Arnstein v. Porter, 2 Cir., 154 F.2d 464; Bruckman v. Hollzer, 9 Cir., 152 F.2d 730.
16
359 U.S., at 506—510, 79 S.Ct. at 954—956. See also Thompson v. Railroad Companies, 6 Wall, 134, 137, 18 L.Ed. 765; Scott v. Neely, 140 U.S. 106, 110, 11 S.Ct. 712, 714, 35 L.Ed. 358.
17
Kirby v. Lake Shore & Michigan Southern R. Co., 120 U.S. 130, 134, 7 S.Ct. 430, 432, 30 L.Ed. 569.
18
Even this limited inroad upon the right to trial by jury "should seldom be made, and if at all only when unusual circumstances exist." La Buy v. Howes Leather Co., 352 U.S. 249, 258, 77 S.Ct. 309, 314, 1 L.Ed.2d 290. See also In re Watkins, 5 Cir., 271 F.2d 771.
19
It was settled in Beacon Theatres that procedural changes which remove the inadequacy of a remedy at law may sharply diminish the scope of traditional equitable remedies by making them unnecessary in many cases. 'Thus, the justification for equity's deciding legal issues once it obtains jurisdiction, and refusing to dismiss a case, merely because subsequently a legal remedy becomes available, must be re-evaluated in the light of the liberal joinder provisions of the Federal Rules which allow legal and equitable causes to be brought and resolved in one civil action. Similarly the need for, and therefore, the availability of such equitable remedies as Bills of Peace, Quia Timet and Injunction must be reconsidered in view of the existence of the Declaratory Judgment Act as well as the liberal joinder provision of the Rules.' 359 U.S., at 509, 79 S.Ct. at 956.
20
This does not, of course, interfere with the District Court's power to grant temporary relief pending a final adjudication on the merits. Such temporary relief has already been granted in this case (see McCullough v. Dairy Queen, Inc., 3 Cir., 290 F.2d 871) and is no part of the issues before this Court.
*
Except as to the damage claim there is no dispute but that the complaint seeks only equitable relief.
| 01
|
369 U.S. 499
82 S.Ct. 881
8 L.Ed.2d 65
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Sally L. BILDER, etc.
No. 384.
Argued March 29, 1962.
Decided April 30, 1962.
Stephen J. Pollak, Washington, D.C., for petitioner.
Martin D. Cohen, Newark, N.J., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case concerns the deductibility as an expense for 'medical care,' under § 213 of the Internal Revenue Code of 1954, 26 U.S.C. § 213, 26 U.S.C.A. § 213, of rent paid by a taxpayer for an apartment in Florida, where he was ordered by his physician, as part of a regimen of medical treatment to spend the winter months.1
2
The taxpayer, now deceased, was an attorney practicing law in Newark, New Jersey. In December 1953, when he was 43 years of age and had suffered four heart attacks during the previous eight years, he was advised by a heart specialist to spend the winter season in a warm climate. The taxpayer, his wife and his three-year-old daughter proceeded immediately to Fort Lauderdale, Florida, where they resided for the ensuing three months in an apartment rented for $1,500. Two months of the succeeding winter were also spent in Fort Lauderdale in an apartment rented for $829.
3
The taxpayer claimed the two rental payments as deductible medical expenses in his 1954 and 1955 income tax returns. These deductions were disallowed in their entirety by the Commissioner.2 The Tax Court reversed the Commissioner's determination to the extent of one-third of the deductions, finding that proportion of the total claimed attributable to the taxpayer's own living accommodations. The remaining two-thirds it attributed to the accommodations of his wife and child, whose presence, the Tax Court concluded, had not been shown to be necessary to the medical treatment of the taxpayer's illness. 33 T.C. 155.
4
On cross-appeals from the decision of the Tax Court, the Court of Appeals held, by a divided vote, that the full rental payments were deductible as expenses for 'medical care' within the meaning of § 213. 289 F.2d 291. Because of a subsequent contrary holding by the Court of Appeals for the Second Circuit, Carasso v. Commissioner, 292 F.2d 367, and the need for a uniform rule on the point, we granted certiorari to resolve the conflict. 368 U.S. 912, 82 S.Ct. 193, 7 L.Ed.2d 130.
5
The Commissioner concedes that prior to the enactment of the Internal Revenue Code of 1954 rental payments of the sort made by the taxpayer were recognized as deductible medical expenses. This was because § 23(x) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 23(x) though expressly authorizing deductions only for 'amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of disease,'3 had been construed to include 'travel primarily for and essential to * * * the prevention or alleviation of a physical or mental defect or illness,' Treasury Regulations 111, § 29.23(x)—1, and the cost of meals and lodging during such travel, I.T. 3786, 1946—1 Cum.Bull. 76. See, e.g., Stringham v. Commissioner, 12 T.C. 580, aff'd, 6 Cir., 183 F.2d 579; Rev.Rule 55—261, 1955—1 Cum.Bull. 307.
6
The Commissioner maintains, however, that it was the purpose of Congress, in enacting § 213(e)(1)(A) of the 1954 Code, albeit in language identical to that used in § 23(x) of the 1939 Code (compare notes 1 and 3, supra), to deny deductions for all personal or living expenses incidental to medical treatment other than the cost of transportation of the patient alone, that exception having been expressly added by subdivision (B) to the definition of 'medical care' in § 213(e)(1). Note 1, supra.
7
We consider the Commissioner's position unassailable in light of the congressional purpose explicitly revealed in the House and Senate Committee Reports on the bill. These reports, anticipating the precise situation now before us, state:
8
'Subsection (e) defines medical care to mean amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of diseases or for the purpose of affecting any structure or function of the body (including amounts paid for accident or health insurance), or for transportation primarily for and essential to medical care. The deduction permitted for 'transportation primarily for and essential to medical care' clarifies existing law in that it specifically excludes deduction of any meals and lodging while away from home receiving medical treatment. For example, if a doctor prescribes that a patient must go to Florida in order to alleviate specific chronic ailments and to escape unfavorable climatic conditions which have proven injurious to the health of the taxpayer, and the travel is prescribed for reasons other than the general improvement of a patient's health, the cost of the patient's transportation to Florida would be deductible but not his living expenses while there. However, if a doctor prescribed an appendectomy and the taxpayer chose to go to Florida for the operation not even his transportation costs would be deductible. The subsection is not intended otherwise to change the existing definitions of medical care, to deny the cost of ordinary ambulance transportation nor to deny the cost of food or lodging provided as part of a hospital bill.' H.R.Rep.No.1337, 83d Cong., 2d Sess. A60 (1954); S.Rep.No.1622, 83d Cong., 2d Sess. 219—220 (1954), U.S.Code Congressional and Administrative News 1954, p. 4197.4 (Emphasis supplied.)
9
Since under the predecessor statute, as it had been construed, expenses for meals and lodging were deductible as expenses for 'medical care,' it may well be true that the Committee Reports spoke in part inartistically when they referred to subsection (e) as a mere clarification of 'existing law,' although it will be noted that the report also referred to what was being done as a pro tanto 'change' in 'the existing definitions of medical care.' Yet Congress' purpose to exclude such expenses as medical deductions under the new bill is unmistakable in these authoritative pronouncements, ibid.; cf. Budget Message of the President for the Fiscal Year 1955, H.R.
10
Doc.No.264, 83d Cong., 2d Sess. M17 (1954); Memorandum of Joint Committee on Internal Revenue Taxation, 1 Senate Hearings on the Internal Revenue Code of 1954, 83d Cong., 2d Sess. 24 (1954); Memorandum of the Under Secretary of the Treasury, id., at 103. It is that factor which is of controlling importance here.5
11
We need not consider whether we would be warranted in disregarding these unequivocal expressions of legislative intent if the statute were so written as to permit no reasonable construction other than that urged on behalf of the taxpayer. Compare Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 73 L.Ed. 170; United States v. Dickerson, 310 U.S. 554, 561—562, 60 S.Ct. 1034, 1038, 84 L.Ed. 1356; Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 362, 87 L.Ed. 407. See also Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 444, 75 S.Ct. 489, 491, 99 L.Ed. 510. Even the initial decision of the Tax Court under the 1939 Code respecting the deductibility of similar expenses under § 23(x) recognized that the language of that statute was 'susceptible to a variety of conflicting interpretations,' Stringham v. Commissioner, 12 T.C. 580, 583. The Tax Court's conclusion as to the meaning of § 23(x) of the earlier statute which was affirmed by the Court of Appeals, 6 Cir., 183 F.2d 579, and acquiesced in by the Commissioner, necessarily rested on what emerged from a study of the legislative history of that enactment. So too the conclusion in this case, which turns on the construction of the identical words re-enacted as part of § 213, must be based on an examination of the legislative history of this provision of the 1954 Code. The Committee Reports foreclose any reading of that provision which would permit this taxpayer to take the rental payments for his Florida apartment as 'medical care' deductions.
12
Reversed.
13
Mr. Justice DOUGLAS would affirm the judgment below for the reasons given by Judge Kalodner, 289 F.2d 291.
14
Mr. Justice FRANKFURTER took no part in the decision of this case.
15
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
Section 213 of the 1954 Code allows as deductions in computing net income 'the expenses paid during the taxable year, not compensated for by insurance or otherwise, for medical care of the taxpayer, his spouse, or a dependent * * *.' Subdivision (e)(1) defines such expenses as 'amounts paid'—
'(A) for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body (including amounts paid for accident or health insurance), or
('B) for transportation primarily for and essential to medical care referred to in subparagraph (A).'
2
The Commissioner concedes that the taxpayer's sojourn in Florida was not for vacation purposes but was 'a medical necessity and * * * a primary part of necessary medical treatment of a disease' from which the taxpayer was suffering, i.e., atherosclerosis. 33 T.C., at 157. The taxpayer also claimed in each of his tax returns a $250 deduction for his transportion between Newark and Fort Lauderdale. Although the Commissioner initially disallowed this deduction, he thereafter acquiesced in its allowance by the Tax Court.
3
Section 23(x) was added to the Internal Revenue Code of 1939 by § 127(a) of the Revenue Act of 1942, 56 Stat. 825. It provided, in pertinent part:
'(In computing net income there shall be allowed as deductions) * * * expenses paid during the taxable year, not compensated for by insurance or otherwise, for medical care of the taxpayer, his spouse, or a dependent * * * of the taxpayer. * * * The term 'medical care,' as used in this subsection, shall include amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body (including amounts paid for accident or health insurance).'
4
The substance of the rule set forth in both Reports has been embodied in the Treasury Regulations interpreting § 213:
'(iv) Expenses paid for transportation primarily for and essential to the rendition of the medical care are expenses paid for medical care. However, an amount allowable as a deduction for 'transportation primarily for and essential to medical care' shall not include the cost of any meals and lodging while away from home receiving medical treatment. For example, if a doctor prescribes that a taxpayer go to a warm climate in order to alleviate a specific chronic ailment, the cost of meals and lodging while there would not be deductible. On the other hand, if the travel is undertaken merely for the general improvement of a taxpayer's health, neither the cost of transportation nor the cost of meals and lodging would be deductible. If a doctor prescribes an operation or other medical care, and the taxpayer chooses for purely personal considerations to travel to another locality (such as a resort area) for the operation or the other medical care, neither the cost of transportation nor the cost of meals and lodging (except where paid as part of a hospital bill) is deductible.' Treasury Regulations on Income Tax (1954 Code) § 1.213—1(e)(1)(iv).
5
The explicitness of the Committee Reports renders it unnecessary to consider the Commissioner's alternative argument that the statute on its face precludes these deductions because (1) § 262 of the 1954 Code, 26 U.S.C. § 262, 26 U.S.C.A. § 262, allows no deductions for 'personal, living, or family expenses' '(e)xcept as otherwise expressly provided in this chapter,' and (2) apart from the medical 'transportation' expense provided in § 213(e)(1)(B), no other express exception can be found in the statute. And the equitable considerations which the respondent brings to bear in support of her construction of § 213 are of course beside the point in this Court, since we must give the statute effect in accordance with the purpose so clearly manifested by Congress.
| 1112
|
369 U.S. 463
82 S.Ct. 913
8 L.Ed.2d 39
GOLDLAWR, INC., Petitioner,v.Marcus HEIMAN et al.
No. 101.
Argued March 19, 1962.
Decided April 30, 1962.
Edwin P. Rome, Philadelphia, Pa., for petitioner.
C. Russell Phillips, Philadelphia, Pa., for respondents Select Operating Corporation and United Booking Office, Inc.
Aaron Lipper, New York City, for Morgan Guaranty Trust Co. of New York, Executor of Estate of Marcus Heiman, Deceased, for respondent Marcus Heiman.
Mr. Justice BLACK delivered the opinion of the Court.
1
This private antitrust action for treble damages and other relief under §§ 1 and 2 of the Sherman Act1 and § 4 of the Clayton Act2 was brought by the petitioner against a number of defendants in the United States District Court for the Eastern District of Pennsylvania. After hearings on a motion to dismiss the action on grounds of improper venue and lack of personal jurisdiction over the defendants, the Pennsylvania District Court agreed that venue was improperly laid as to two of the corporate defendants3 because they were neither inhabitants of, 'found' nor transacting business in Pennsylvania, these being the alternative prerequisites for venue under § 12 of the Clayton Act.4 That court refused to dismiss the action as to these defendants, however, choosing instead to use its authority under 28 U.S.C. § 1406(a), 28 U.S.C.A. § 1406(a), to transfer it to the Southern District of New York where, because the defendants could be found and transacted business, venue was proper and personal jurisdiction could be obtained over them by service of process under § 12. These two corporate defendants then appeared in the New York District Court and moved to have the case dismissed by that court on the ground that the Pennsylvania District Court had not had personal jurisdiction over them and, lacking such personal jurisdiction, it had not had power under § 1406(a) to transfer the action.5 The New York District Court granted this motion on the ground asserted,6 and the Court of Appeals for the Second Circuit, with Judge Hincks dissenting, affirmed on the same ground.7 Because this decision presented a conflict with the uniform course of decisions previously made on this same question by other Courts of Appeal,8 we granted certiorari.9
2
Section 1406(a), under which the Pennsylvania District Court transferred this case, provides:
3
'The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.'
4
Nothing in that language indicates that the operation of the section was intended to be limited to actions in which the transferring court has personal jurisdiction over the defendants. And we cannot agree that such a restrictive interpretation can be supported by its legislative history—either that relied upon by the Court of Appeals10 or any other that has been brought to our attention. The problem which gave rise to the enactment of the section was that of avoiding the injustice which had often resulted to plaintiffs from dismissal of their actions merely because they had made an erroneous guess with regard to the existence of some elusive fact of the kind upon which venue provisions often turn. Indeed, this case is itself a typical example of the problem sought to be avoided, for dismissal here would have resulted in plaintiff's losing a substantial part of its cause of action under the statute of limitations merely because it made a mistake in thinking that the respondent corporations could be 'found' or that they 'transact * * * business' in the Eastern District of Pennsylvania.11 The language and history of § 1406(a), both as originally enacted12 and as amended in 1949,13 show a congressional purpose to provide as effective a remedy as possible to avoid precisely this sort of injustice.
5
The language of § 1406(a) is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not. The section is thus in accord with the general purpose which has prompted many of the procedural changes of the past few years—that of removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits. When a lawsuit is filed, that filing shows a desire on the part of the plaintiff to begin his case and thereby toll whatever statutes of limitation would otherwise apply. The filing itself shows the proper diligence on the part of the plaintiff which such statutes of limitation were intended to insure. If by reason of the uncertainties of proper venue a mistake is made, Congress, by the enactment of § 1406(a), recognized that 'the interest of justice' may require that the complaint not be dismissed but rather that it be transferred in order that the plaintiff not be penalized by what the late Judge Parker aptly characterized as 'time-consuming and justice-defeating technicalities.'14 It would at least partially frustrate this enlightened congressional objective to import ambiguities into § 1406(a) which do not exist in the language Congress used to achieve the procedural reform it desired.
6
The Court of Appeals erred in upholding the District Court's order dismissing this action as to these two corporate defendants. The judgment of the Court of Appeals is accordingly reversed.
7
Reversed.
8
Mr. Justice FRANKFURTER took no part in the decision of this case.
9
Mr. Justice WHITE took no part in the consideration or decision of this case.
10
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
11
The notion that a District Court may deal with an in personam action in such a way as possibly to affect a defendant's substantive rights without first acquiring jurisdiction over him is not a familiar one in federal jurisprudence. No one suggests that Congress was aware that 28 U.S.C. § 1406(a), 28 U.S.C.A. § 1406(a), might be so used when it enacted that statute. The 'interest of justice' of which the statute speaks and which the Court's opinion emphasizes in support of its construction of § 1406(a) is assuredly not a one-way street. And it is incongruous to consider, as the Court's holding would seem to imply, that in the 'interest of justice' Congress sought in § 1406(a) to deal with the transfer of cases where both venue and jurisdiction are lacking in the district where the action is commenced, while neglecting to provide any comparable alleviative measures for the plaintiff who selects a district where venue is proper but where personal jurisdiction cannot be obtained.*
12
In these circumstances I think the matter is better left for further action by Congress, preferably after the Judicial Conference of the United States has expressed its views on the subject. Cf. Miner v. Atlass, 363 U.S. 641, 650—652, 80 S.Ct. 1300, 1307, 4 L.Ed.2d 1462. Meanwhile, substantially for the reasons elaborated in the opinion of Judge Moore, 288 F.2d 579, I would affirm the judgment of the Court of Appeals.
1
26 Stat. 209, as amended, 15 U.S.C. §§ 1 and 2, 15 U.S.C.A. §§ 1 and 2.
2
38 Stat. 731, 15 U.S.C. § 15, 15 U.S.C.A. § 15.
3
The District Court also found venue improper as to a number of individual defendants, but that fact is not relevant to any issue properly before us. See note 6, infra.
4
38 Stat. 736, 15 U.S.C. § 22, 15 U.S.C.A. § 22. This section, which deals with both venue and personal jurisdiction, in antitrust actions against corporations also provides that process may be served in the district of which the corporation 'is an inhabitant, or wherever it may be found.'
5
The Pennsylvania District Court also transferred the action against the individual defendants as to whom venue had been found improper. Only one of these, Marcus Heiman, moved in the New York District Court to have the action dismissed as to him for lack of power in the transferring court. Heiman's motion was granted on this ground and on a second entirely independent ground. The Court of Appeals affirmed the dismissal as to Heiman on both grounds and the petitioner did not seek certiorari as to the second and independent ground, The writ is therefore dismissed as to Heiman.
6
Goldlawr v. Shubert, D.C., 175 F.Supp. 793.
7
288 F.2d 579.
8
See Internatio-Rotterdam, Inc., v. Thomsen, 4 Cir., 218 F.2d 514; Orion Shipping & Trading Co. v. United States, 9 Cir., 247 F.2d 755; Amerio Contact Plate Freezers, Inc., v. Knowles, 107 U.S.App.D.C. 81, 274 F.2d 590; Hayes v. Livermont, 108 U.S.App.D.C. 43, 279 F.2d 818.
9
368 U.S. 810, 82 S.Ct. 33, 7 L.Ed.2d 19.
10
Senate Report No. 303, 81st Cong., 1st Sess., U.S.Code Cong.Service 1940, p. 1253, discussed by the court below at 288 F.2d 579, 583.
11
As illustrating the difficulties which may arise in determining where corporations can be found or transact business, see Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 73 S.Ct. 900, 97 L.Ed. 1331; International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.
12
62 Stat. 937.
13
63 Stat. 101.
14
Internatio-Rotterdam, Inc., v. Thomsen, 4 Cir., 218 F.2d 514, 517.
*
In an ordinary diversity suit, for example, a plaintiff may bring suit in the judicial district where he resides. 28 U.S.C. § 1391(a), 28 U.S.C.A. § 1391(a). But if he is unable to get personal service on the defendant in the territory defined by Fed.Rule Civ.Proc. 4(f), 28 U.S.C.A., his suit will be dismissed. See Robertson v. Railroad Labor Board, 268 U.S. 619, 45 S.Ct. 621, 69 L.Ed. 1119; cf. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 442—443, 66 S.Ct. 242, 245, 90 L.Ed. 185. Since this would not be 'a case laying venue in the wrong division or district,' § 1406(a) would be inapplicable.
| 89
|
369 U.S. 482
82 S.Ct. 901
8 L.Ed.2d 54
CALIFORNIA, Petitioner,v.FEDERAL POWER COMMISSION et al.
No. 187.
Argued March 1, 1962.
Decided April 30, 1962.
William M. Bennett, San Francisco, Cal., for petitioner.
Sol. Gen. Archibald Cox, for respondent Federal Power Commission.
Arthur H. Dean, New York City, for respondent El Paso Natural Gas Co.
Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BRENNAN.
1
El Paso Natural Gas Company first acquired the stock of the Pacific Northwest Pipeline Corp. and then applied to the Federal Power Commission for authority to acquire the assets pursuant to § 7 of the Natural Gas Act, 52 Stat. 825, 15 U.S.C. § 717f(c), 15 U.S.C.A. § 717f(c). This application was dated August 7, 1957. Prior thereto, on July 22, 1957, the Federal Government commenced an action against El Paso and Pacific Northwest, alleging that El Paso's acquisition of the stock of Pacific Northwest violated § 7 of the Clayton Act,1 38 Stat. 731, as amended, 64 Stat. 1125, 15 U.S.C. § 18, 15 U.S.C.A. § 18. On September 30, 1957, El Paso and Pacific Northwest filed a motion to dismiss the antitrust suit or to stay it, pending completion of the proceedings before the Commission. On October 21, 1957, that motion was denied after hearing; and we denied certiorari. 355 U.S. 950, 78 S.Ct. 553, 2 L.Ed.2d 528.
2
In May and June 1958, the Department of Justice wrote four letters to the Commission, asking that the proceeding be stayed pending the outcome of the antitrust suit. On July 29, 1958, the Department of Justice was advised by the Commission that it would not stay its proceedings. The Commission invited the Antitrust Division of the Department to participate in the administrative proceedings; but it did not do so.
3
The hearings before the Commission started September 17, 1958. On Ocotober 2, 1958, El Paso and Pacific Northwest moved in the District Court for a continuance of the antitrust suit. On October 6, 1958, the Department of Justice asked the Commission to postpone its hearing, pending final outcome of the antitrust suit which had then been set for trial November 17, 1958. On October 7, 1958, the Commission wrote the District Court that if the court denied El Paso and Pacific Northwest's motion for a continuance and proceeded with the antitrust trial, the Commission would continue its merger hearings to a date that would not conflict with the trial date of the antitrust case, but that if the court granted the motion for continuance, the Commission would proceed with its hearing. On October 13, 1958, the District Court continued the antitrust suit until the final decision in the administrative proceedings. The latter proceedings were concluded, the Commission authorizing the merger on December 23, 1959. 22 F.P.C. 1091, 23 F.P.C. 350. The merger was consummated December 31, 1959.
4
Petitioner intervened in the administrative proceedings August 27, 1957, and obtained review by the Court of Appeals, which affirmed the Commission. (111 U.S.App.D.C. 226, 296 F.2d 348), Judge Fahy dissenting. We granted certiorari, 368 U.S. 810, 82 S.Ct. 47, 7 L.Ed.2d 20.
5
Evidence of antitrust violations is plainly relevant in merger applications, for part of the content of 'public convenience and necessity' as used in § 7 of the Natural Gas Act is found in the laws of the United States. City of Pittsburgh v. Federal Power Commission, 99 U.S.App.D.C. 113, 237 F.2d 741.
6
Immunity from the antitrust laws is not lightly implied. The exemption of agricultural cooperatives from the antitrust laws granted by § 6 of the Clayton Act, 15 U.S.C.A. § 17, and § 1 and § 2 of the Capper-Volstead Act of 1922, 7 U.S.C.A. §§ 291, 292, became relevant in Maryland and Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880. While § 7 of the Clayton Act gave immunity to 'transactions duly consummated pursuant to authority given by * * * the Secretary of Agriculture under any statutory provision vesting such power in such * * * Secretary,' we held that the only authority of the Secretary was to approve 'marketing agreements' (id., 469—470, 80 S.Ct. 855) and not other types of agreements or restraints, typically covered by the antitrust laws. Accordingly, we held that the District Court was authorized to direct the cooperative to dispose as a unit of the assets of an independent producer that had been acquired to stifle competition and restrain trade. We could not assume that Congress, having granted only a limited exemption from the antitrust laws, nonetheless granted an overall inclusive one. See United States v. Borden Co., 308 U.S. 188, 198 202, 60 S.Ct. 182, 188—190, 84 L.Ed. 181. 'When there are two acts upon the same subject, the rule is to give effect to both if possible.' Id., at 198, 60 S.Ct. at 188. Here, as in United States v. R.C.A., 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354, while 'natitrust considerations' are relevant to the issue of 'public interest, convenience, and necessity' (id., at o51, 79 S.Ct. at 467), there is no 'pervasive regulatory scheme' (ibid.) including the antitrust laws that has been entrusted to the Commission. And see National Broadcasting Co. v. United States, 319 U.S. 190, 223, 63 S.Ct. 997, 1012, 87 L.Ed. 1344. Under the Interstate Commerce Act, mergers of carriers that are approved have an antitrust immunity, as § 5(11) of that Act, 49 U.S.C.A. § 5(11), specifically provides that the carriers involved 'shall be and they are hereby relieved from the operation of the antitrust laws * * *.' See McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544.
7
There is no comparable provision under the Natural Gas Act. Section 7 of the Clayton Act—which prohibits stock acquisitions 'where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly'—contains a proviso that 'Nothing contained in this section shall apply to transactions duly consummated pursuant to authority given by the * * * Federal Power Commission * * * under any statutory provision vesting such power in such Commission * * *.' The words 'transactions duly consummated pursuant to authority' given the Commission 'under any statutory provision vesting such power' in it are plainly not a grant of power to adjudicate antitrust issues. Congress made clear that by this proviso in § 7 of the Clayton Act '* * * it is not intended that * * * any * * * agency' mentioned 'shall be granted any authority or powers which it does not already possess.' S.Rep.No. 1775, 81st Cong., 2d Sess., p. 7, U.S.Code Cong. Service 1950, p. 4300. The Commission's standard, set forth in § 7 of the Natural Gas Act, is that the acquisition, merger, etc., will serve the 'public convenience and necessity.' If existing natural gas companies violate the antitrust laws, the Commission is advised by § 20(a) to 'transmit such evidence' to the Attorney General 'who, in his discretion, may institute the necessary criminal proceedings.' Other administrative agencies are authorized to enforce § 7 of the Clayton Act when it comes to certain classes of companies or persons;2 but the Federal Power Commission is not included in the list.
8
We do not decide whether in this case there were any violations of the antitrust laws. We rule only on one select issue and that is: should the Commission proceed to a decision on the merits of a merger application when there is pending in the courts a suit challenging the validity of that transaction under the antitrust laws? We think not. We think the Commission in those circumstances should await the decision of the courts.
9
The Commission considered the interplay between § 7 of the Clayton Act and § 7 of the Natural Gas Act and said:
10
'Section 7 of the Clayton Act, under which the antitrust suit was brought, prohibits the acquisition by one corporation of the stock or assets of another corporation where 'the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.' Exempt, however, are transactions consummated pursuant to Commission authority. This shows, reasons the presiding examiner, that Congress placed reliance on the Commission not to approve an acquisition of assets in violation of the injunction of the Clayton Act, unless in the carefully exercised judgment of the Commission, the acquisition would nevertheless be in the public interest. What we are attempting to arrive at is the public convenience and necessity. In reaching our determination, we do not have authority to determine whether a given transaction is in violation of the Clayton Act, but we are required to consider the bearing of the policy of the antitrust laws on the public convenience and necessity. City of Pittsburgh v. F.P.C. (99 U.S.App.D.C. 113), 237 F.2d 741, 754 (CADC). With the presiding examiner, we find that any lessening of competition whether in-the consumer markets or the producing fields, does not prevent our approving the merger because there are other factors which outweigh the elimination of Pacific as a competitor. In any case, it appears that any lessening of competition is not substantial.' 22 F.P.C. 1091, 1095.
11
Apart from the fact that the Commission did undertake to make a finding reserved to the courts by § 7 of the Clayton Act,3 there are practical reasons why it should have held its hand until the courts had acted.
12
One is that if the Commission approves the transaction and the courts in the antitrust suit later hold it to be illegal, an unscrambling is necessary. Maryland and Virginia Milk Producers Ass'n v. United States, supra. Thus a needless waste of time and money may be involved. Also these unscrambling processes often raise complicated and perplexing problems on tax matters and otherwise, as our recent decision in United States v. % e. i. d/u Pont, etc., & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057; 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318, shows.4 Such complexities are inherent in the situation, as approval of the transaction by the Commission would be no bar to the antitrust suit. See United States v. R.C.A., supra.
13
Another practical reason is that a transaction consummated under the aegis of the Commission as being a matter of 'public convenience and necessity' is bound to carry momentum into the antitrust suit. The very prospect of undoing what was done raises a powerful influence in the antitrust litigation, as United States v. E. I. Du Pont, etc., & Co., supra, illustrates.
14
The orderly procedure is for the Commission to await decision in the antitrust suit before taking action.
15
Section 7 of the Clayton Act, so far as material here, prohibits stock acquisitions having a prescribed effect. Section 7 of the Natural Gas Act confers jurisdiction on the Commission over the acquisition of assets of natural gas companies,5 not over stock acquisitions in them. Had the Commission stayed its hand and had the courts found the stock acquisition unlawful, the entire transaction would have been set aside in limine. Had the courts found the stock acquisition lawful, presumably no problems under § 7 of the Clayton Act would have remained. When the Commission proceeds in the face of a pending but undecided antitrust suit and approves a merger that has been preceded, as this one was, by a stock acquisition, it in substance treats the entire relation of the companies—from the acquisition of stock to the merger—as an integrated transaction. If that administrative action were approved, the Commission would be allowed to do by indirection what it has no jurisdiction to do directly.
16
It is not for us to say that the complementary legislative policies reflected in § 7 of the Clayton Act on the one hand and in § 7 of the Natural Gas Act on the other should be better accommodated. Our function is to see that the policy entrusted to the courts is not frustrated by an administrative agency. Where the primary jurisdiction is in the agency, courts withhold action until the agency has acted. Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. The converse should also be true, lest the antitrust policy whose enforcement Congress in this situation has entrusted to the courts is in practical effect taken over by the Federal Power Commission. Moreover, as noted, the Commission in holding that 'any lessening of competition is not substantial' was in the domain of the Clayton Act, a domain which is entrusted to the court in which the antitrust suit was pending.
17
The judgment of the Court of Appeals is reversed and the case is remanded for proceedings in conformity with this opinion. It is so ordered.
18
Mr. Justice FRANKFURTER took no part in the decision of this case.
19
Mr. Justice WHITE took no part in the consideration or decision of this case.
20
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
21
In this case originating in the Federal Power Commission, the Court today announces a new and surprising antitrust procedural rule: If the Commission is asked to 'proceed to a decision on the merits of a merger application when there is pending in the courts a suit challenging the validity of that (merger and its antecedent) transaction(s) under the antitrust laws,' the Commission must abstain from a determination and 'await decision in the antitrust suit before taking action.' (Ante, 369 U.S., pp. 487, 489, 82 S.Ct., pp. 905, 906.)
22
The holding does not turn on any facts or circumstances which may be said to be peculiar to this particular case. It is not limited to Federal Power Commission proceedings. Without adverting to any legal principle or statute to support its decision, the Court appears to lay down a pervasive rule, born solely of its own abstract notions of what 'orderly procedure' requires, that seemingly will henceforth govern every agency action involving matters with respect to which the antitrust laws are applicable and antitrust litigation is then pending in the courts.
23
I cannot subscribe to a decision which broadly works such havoc with the proper relationship between the administrative and judicial functions in matters of this kind. The decision, on the one hand, in effect transfers to the Antitrust Division of the Department of Justice regulatory functions entrusted to administrative agencies, and on the other hand deprives the courts in government antitrust litigation of the authority given them by statute to determine whether or not interlocutory relief is necessary or appropriate. What this new rule entails is illustrated by this case: A business transaction of great magnitude and importance, which the Federal Power Commission has found to be in the public interest, is, at least for the time being, set for naught, without the slightest inquiry into whether the antitrust charges leveled against it are weighty or not. The Court's action is the more unusual because it is taken (1) despite the antitrust court's denial of interlocutory relief when such relief was belatedly sought by the Government; (2) in the face of the considered judgment of the Solicitor General, representing the public interests respectively involved in the administrative and antitrust proceedings, that determination of the ultimate effect of the Commission's order should be left to abide the event of the antitrust case, and that meanwhile such order should be allowed to stand; and (3) at the instance only of an intervenor in the Commission's proceeding which was not even a party to the Government's antitrust suit.
24
The undiscriminating nature and reach of this decision become apparent when attention is focused on the procedural events occurring prior to the order of the Commission which is here under attack. On July 22, 1957, the Department of Justice instituted a civil action in the United States District Court in Utah against the El Paso Natural Gas Company and the Pacific Northwest Pipeline Company, seeking to restrain an alleged violation of § 7 of the Clayton Act. This violation was said to have occurred when, beginning in January 1957, El Paso embarked on a program of acquiring nearly all of Pacific's outstanding common stock. The complaint asked that the purchase be declared to be a violation of § 7 of the Clayton Act and that El Paso be directed to divest itself of Pacific's stock. No interlocutory relief appears to have been requested.
25
On August 7, 1957, El Paso filed with the Federal Power Commission its application for authorization to merge Pacific's assets with its own. Despite this announced intention further to intermingle the affairs of the two corporations, the Government did not seek temporary relief from the District Court in Utah. El Paso, on the other hand, contended that 'primary jurisdiction' with regard to the merger resided with the Commission and sought to have the antitrust action stayed. Its motion was denied by the District Court, and on March 3, 1958, we denied leave to file a petition for common-law certiorari to that decision. 355 U.S. 950, 78 S.Ct. 553, 2 L.Ed.2d 528.
26
When the case was returned to the District Court the Government again made no effort to obtain from that court an order maintaining the status quo pending the outcome of the suit. Instead, the Assistant Attorney General in charge of the Antitrust Division suggested to the Commission that it stay its own proceedings until the antitrust suit had terminated. When this request was rejected by the Commission, the Antitrust Division withdrew from the Commission proceedings despite an express invitation from the Commission that it participate.
27
Hearings before the Commission's examiner were scheduled to begin on September 17, 1958, and the trial of the antitrust suit in the District Court was set for November 17, 1958. At a hearing on several pretrial matters held in the District Court on September 5 and 6, the Government, for the first time, moved for a temporary injunction to restrain the asset merger even if the Commission's approval were forthcoming.1 That motion was denied and not renewed thereafter. The Commission's hearings began on September 17 and were recessed on September 26 until November 12.
28
El Paso again moved in the District Court for a continuance of the antitrust trial until after the Commission had passed on the merger application, and the Government once more asked the Commission to stay its proceedings pending the outcome of the antitrust case. While noting that the Government had refused the Commission's invitation to intervene in the merger proceedings, the Commission agreed to defer to the District Court. It notified the court that if El Paso's motion for a continuance of the trial were denied, the Commission would continue its merger proceeding to a later date. On October 13, 1958, the District Court issued an order granting El Paso's motion and continued the antitrust trial 'until the final determination by the Federal Power Commission of the applications now pending before it.' The Government has never sought to review this order by mandamus or by any other available means. The Commission subsequently held its hearings and authorized the merger of El Paso and Pacific in an order dated December 23, 1959. It is that order which the Court today in effect holds to have been entered without jurisdiction.
29
The Court relies on three 'practical reasons' to support its perplexing conclusion that despite the Government's failure promptly to seek relief pendente lite in the antitrust suit, its failure to press for review of the denial of such relief when belatedly sought and the Commission's expressed willingness to defer to the antitrust court, the Commission was nonetheless required to withhold approval of the merger application: (1) If the asset merger were approved and executed, and the stock purchase thereafter held to be illegal, an 'unscrambling' involving 'needless waste of time and money' would be necessary; (2) such an 'unscrambling' would 'raise complicated and perplexing problems on tax matters and otherwise'; (3) the Commission's approval of the asset merger 'is bound to carry momentum into the antitrust suit.' (Ante, 369 U.S., pp. 488—489, 82 S.Ct., pp. 905, 906). Whatever weight these considerations may be deemed to have, I think that 'orderly procedure' required their determination, at least in the first instance, by the antitrust court, if indeed they were not rejected by the District Court on the Government's 1958 motion to enjoin consummation of the merger. Their consideration by this Court as an original matter is entirely inappropriate, and in no event do any of them affect the validity of the Commission's order approving the merger.2
I.
30
Section 15 of the Clayton Act, 15 U.S.C. § 25, 15 U.S.C.A. § 25, grants jurisdiction to the United States District Courts 'to prevent and restrain violations' of the Clayton Act, and empowers the United States Attorneys 'to institute proceedings in equity to prevent and restrain such violations.' The same statutory section provides that pending determination of the merits of a complaint filed by the United States 'and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises.' Consequently, it is the duty of the District Court before which an antitrust suit is pending to pass on the desirability of temporary relief in order to avoid later problems of 'unscrambling.' In the case before us, it was not until more than a year after the Government knew of El Paso's intention to merge Pacific's assets with its own that it requested the District Court to enjoin the execution of this plan. The court's denial of the temporary injunction must be presumed to have been based on its evaluation of the likelihood of success of the antitrust suit and of the difficulties that might arise if interlocutory relief were denied. Not having renewed its motion, the Government may surely not revive it indirectly by attacking the Commission's order. Moreover, by what authority is petitioner, the State of California, an intervenor only in the Commission's proceedings, empowered to assert claims relating to the enforcement of the antitrust laws that are unavailable to the Government, the plaintiff in the antitrust action?
II.
31
Similarly, whatever is meant by the suggestion that the Commission's approval carries 'momentum' into the antitrust suit, this factor is one that should be remedied, if necessary, by purging the antitrust proceedings of any improper influence deriving from the agency determination, not by invalidating the administrative action. The Court's holding—which is unnecessary to a decision of this case and, as the Government argues, also premature3—that the concluding proviso of § 7 of the Clayton Act gives the Commission's approval of this asset merger no immunizing effect against the antitrust claim, surely lends added support to the view that the agency is permitted to consider this application as it might consider any other which suggests no difficulties under the antitrust laws. If the Commission's approval is irrelevant to the merits of the Government's antitrust suit, it is the court considering the antitrust claim which should guard itself against giving weight to this irrelevancy, not the Commission passing on the merger application. And if the lower courts should ultimately go wrong in this regard, their error would be correctible in this Court.
32
Likewise there is little substance to the difficulty which this Court finds in a court 'undoing what was done' (ante, 369 U.S. p. 489, 82 S.Ct., p. 906) by the Commission. Had the antitrust trial court been fearful on that score it could have entered an appropriate interlocutory order ensuring that nothing would be done while the litigation was pending.
III.
33
Finally, I do not think that the record in this case justifies a conclusion that the Commission's refusal to postpone consideration of the merger application amounted to an abuse of discretion. On the Court's premise that the agency's approval did not immunize the transaction from antitrust liability, the Commission's action in granting the certificate of public convenience and necessity did not more than permit the merger to be consummated subject to all possible antitrust infirmities. And even proceeding on the Commission's premise that the proviso of § 7 of the Clayton Act gives it the power to immunize mergers from antitrust liability, its decision to go ahead after being notified by the District Court that the motion to continue the antitrust suit had been granted could hardly be regarded as an abuse of discretion.
34
In conclusion, the Court's decision in this case creates a wholly artificial imbalance between antitrust law enforcement and administrative regulation with respect to federally regulated industries. By displacing the continuing supervision of a court over such interlocutory terms as are 'just in the premises' with an absolute rule prohibiting the regulating agency from considering applications relating to matters which are also involved in a pending antitrust suit, this decision seems to leave no room for sensible accommodation of the two sets of interests in a given instance. Neither the inflexible rule announced by the Court nor its decision on the facts of this case is supported by reason or authority.
35
I would affirm.
1
Section 7 of the Clayton Act provides in relevant part:
'No corporation engaged in commerce shall acquire, directly or indirectly, the the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.
'No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of one or more corporations engaged in commerce, where in any line of commerce in any section of the country, the effect of such acquisition, of such stocks or assets, or of the use of such stock by the voting or granting of proxies or otherwise, may be substantially to lessen competition, or to tend to create a monopoly.'
2
Section 11 of the Clayton Act, 15 U.S.C. § 21, 15 U.S.C.A. § 21, vests authority to enforce compliance with § 7 by the persons subject thereto:
'* * * in the Interstate Commerce Commission where applicable to common carriers subject to the Interstate Commerce Act, as amended; in the Federal Communications Commission where applicable to common carriers engaged in wire or radio communication or radio transmission of energy; in the Civil Aeronautics Board where applicable to air carriers and foreign air carriers subject to the Civil Aeronautics Act of 1938; in the Federal Reserve Board where applicable to banks, banking associations, and trust companies; and in the Federal Trade Commission where applicable to all other character of commerce to be exercised as follows: * * *.'
3
Where 'the effect of such acquisition may be substantially to lessen competition.' Section 7, supra, note 1.
4
In that case, which also was under § 7 of the Clayton Act, we said: '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.' 353 U.S., at 589, 77 S.Ct. at 875. As to the remedy we stated in United States v. E. I. Du Pont, etc., & Co., 366 U.S., at 334, 81 S.Ct. at 1254: '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 successfuly borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor.'
5
Section 7(c) provides in relevant part:
'No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is no force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations.'
1
The fact that such a motion was made and denied does not appear in the record before this Court. However, it is asserted in El Paso's brief and is not denied by any of the other parties.
2
Because of the posture of this case, I would not reach the question as to what weight should be given to the pendency of administrative merger proceedings by an antitrust court which is asked to grant interlocutory relief. However, I think more can be said than the Court does in favor of staying the hand of an antitrust court pending consideration by the appropriate agency of matters touching on 'those areas * * * in which active regulation has been found necessary to compensate for the inability of competition to provide adequate regulation.' Federal Communications Comm. v. R.C.A. Communications, Inc., 346 U.S. 86, 92, 73 S.Ct. 998, 1003, 97 L.Ed. 1470.
3
Whatever may be the impact on a § 7 action of the Commission's approval of this merger, it can be felt only in the antitrust suit. Consequently, I would, as the Solicitor General has suggested, leave this issue open for consideration in the District Court should be agency's order be asserted as a defense in that action.
| 78
|
369 U.S. 656
82 S.Ct. 992
8 L.Ed.2d 178
Pearl Raymond MATTOXv.B. C. SACKS.
No. Misc. 584.
Decided May 14, 1962.
Pearl Raymond Mattox, pro se.
Mark McElroy, Atty. Gen. of Ohio, and Aubrey A. Wendt, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
Petitioner was convicted in an Ohio state court of assault with intent to kill and of cutting with intent to kill, wound or main the same person. He immediately sought a writ of habeas corpus which was denied on the ground that appeal was the proper remedy. He then attempted to appeal but this was denied as out of time and the Supreme Court of Ohio affirmed this denial. He unsuccessfully sought habeas corpus twice more, the latest petition being to the Supreme Court of Ohio and alleging, among other matters, a denial of counsel at his trial and a deprivation of rights guaranteed by the Due Process Clause of the Fourteenth Amendment. The Supreme Court of Ohio denied the petition, holding that habeas corpus was not a substitute for appeal and was not available to remedy the defects alleged by petitioner. Petitioner now seeks our writ of certiorari to review that ruling.
2
The petition for certiorari must be denied. The decision below and the several prior actions in the Ohio courts indicate that petitioner is without a state remedy to challenge his conviction upon the federal constitutional grounds asserted. In these circumstances, Darr v. Burford, 339 U.S. 200, 208, 70 S.Ct. 587, 592, 94 L.Ed. 761, is not applicable and a prisoner may, without first seeking certiorari here, file his application for habeas corpus in the appropriate United States District Court. 28 U.S.C. § 2254, 28 U.S.C.A. § 2254. Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541. Petitioner's allegations, if true, would present serious questions under the Fourteenth Amendment, and those allegations would therefore entitle him to a hearing. Massey v. Moore, supra; Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126.
3
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
| 01
|
369 U.S. 643
82 S.Ct. 980
8 L.Ed.2d 168
Buford MALONE, Jr., Petitioner,v.James A. BOWDOIN et al.
No. 113.
Argued March 20, 1962.
Decided May 14, 1962.
Daniel M. Friedman, Washington, D.C., for petitioner.
William Buford Mitchell, Forsyth, Ga., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
This litigation began in a Georgia court when the respondents filed a common law action of ejectment against the petitioner, a Forest Service Officer of the United States Department of Agriculture.1 The basis for the suit was the respondents' claim that they were the rightful owners of certain land occupied by the petitioner.2 The action was removed to a Federal District Court under the provisions of 28 U.S.C. § 1442(a), 28 U.S.C.A. § 1442(a).3 The removal petition stated that the action 'involves lands that were acquired by the United States of America by deed on June 6, 1936,' that the petitioner's 'official duties as a Forest Service Officer required him to be, and he was, in charge and in possession of the land described in said ejectment suit,' and that 'all his acts in connection with the matters charged in said complaint were committed by him under color of his said office.'
2
The petitioner filed a motion to dismiss upon the ground that the suit was in substance and effect one against the United States, which had not consented to be sued or waived its immunity from suit. Noting that the respondents had conceded in a pretrial conference that the petitioner in occupying the land was acting solely as an official or employee of the United States, the District Court granted the motion to dismiss, relying upon Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.4 On appeal, the judgment was reversed, one judge dissenting, 5 Cir., 284 F.2d 95.5 We granted certiorari to consider the scope of sovereign immunity in suits of this kind. 368 U.S. 811, 82 S.Ct. 35, 7 L.Ed.2d 20. We agree with the District Court that the doctrine of the Larson case required dismissal of this action, and we therefore reverse the judgment of the Court of Appeals.
3
For its view that the sovereign immunity of the United States did not bar the maintenance of this suit, the Court of Appeals found principal support in United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171. In that case the Virginia estate of General Robert E. Lee had been acquired by the United States for nonpayment of taxes, although the taxes had in fact been tendered by a third party. An ejectment action was brought against the governmental custodians of the land, upon which a federal military installation and a cemetery had been established. The trial court found that the tax sale had been invalid, and that title to the land was in the plaintiff. This Court upheld a judgment in favor of the plaintiff upon the trial court's finding that the defendants' possession of the land was illegal, holding that a suit against them under such circumstances was not a suit against the sovereign.
4
In a number of later cases, arising over the years in a variety of factual situations, the principles of the Lee case were approved.6 But in several other cases which came to the Court during the same period, it was held that suits against government agents, specifically affecting property in which the United States claimed an interest, were barred by the doctrine of sovereign immunity.7 While it is possible to differentiate many of these cases upon their individualized facts, it is fair to say that to reconcile completely all the decisions of the Court in this field prior to 1949 would be a Procrustean task.
5
The Court's 1949 Larson decision makes it unnecessary, however, to undertake that task here. For in Larson the Court, aware that it was called upon to 'resolve the conflict in doctrine' (337 U.S., at 701, 69 S.Ct. at 1467), thoroughly reviewed the many prior decisions, and made an informed and carefully considered choice between the seemingly conflicting precedents.
6
In that case a suit had been brought against the War Assets Administrator to enjoin him from selling surplus coal which, it was alleged, the Administrator had already sold to the plaintiff. The theory of the action was that where 'an officer of the Government wrongly takes or holds specific property to which the plaintiff has title then his taking or holding is a tort, and 'illegal' as a matter of general law, whether or not it be within his delegated powers,' and that the officer 'may therefore be sued individually to prevent the 'illegal' taking or to recover the property 'illegally' held.' 337 U.S., at 692, 69 S.Ct., at 1462. The Court held that this theory was not adequate to support a conclusion that the relief asked was not relief against the sovereign.
7
Cutting through the tangle of previous decisions, the Court expressly postulated the rule that the action of a federal officer affecting property claimed by a plaintiff can be made the basis of a suit for specific relief against the officer as an individual only if the officer's action is 'not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void.' 337 U.S., at 702, 69 S.Ct., at 1467. Since the plaintiff had not made an affirmative allegation of any relevant statutory limitation upon the Administrator's powers, and had made no claim that the Administrator's action amounted to an unconstitutional taking, the Court ruled that the suit must fail as an effort to enjoin the United States.
8
While not expressly overruling United States v. Lee, supra, the Court in Larson limited that decision in such a way as to make it inapplicable to the case before us. Pointing out that at the time of the Lee decision there was no remedy by which the plaintiff could have recovered compensation for the taking of his land,8 the Court interpreted Lee as simply 'a specific application of the constitutional exception to the doctrine of sovereign immunity.' 337 U.S., at 696, 69 S.Ct., at 1464. So construed, the Lee case has continuing validity only 'where there is a claim that the holding constitutes an unconstitutional taking of property without just compensation.' Id., at 697, 69 S.Ct., at 1465.
9
No such claim has been advanced in the present case. Nor has it been asserted that the petitioner was exceeding his delegated powers as an officer of the United States in occupying the land in question,9 or that he was in possession of the land in anything other than his official capacity. This suit, therefore, is not within the class of cases in which, under Larson, specific relief can be obtained against a government officer. Accordingly, it was rightly dismissed by the District Court as an action which in substance and effect was one against the United States without its consent.
10
Reversed.
11
Mr. Justice FRANKFURTER took no part in the decision of this case.
12
Mr. Justice WHITE took no part in the consideration or decision of this case.
13
Mr. Justice DOUGLAS, dissenting.
14
United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, serves a useful function and should be followed here. There, as here, the contest was over real estate which an officer of the Federal Government held against the claim of the plaintiff. Here, as there, if the federal agent's possession of the land is illegal the suit is not against the sovereign. Mr. Justice Miller, speaking for the Court, said:
15
'The instances in which the life and liberty of the citizen have been protected by the judicial writ of habeas corpus are too familiar to need citation, and many of these cases, indeed almost all of them, are those in which life or liberty was invaded by persons assuming to act under the authority of the government. * * *
16
'If this constitutional provision is a sufficient authority for the court to interfere to rescue a prisoner from the hands of those holding him under the asserted authority of the government, what reason is there that the same courts shall not give remedy to the citizen whose property has been seized without due process of law and devoted to public use without just compensation?' Id., at 218, 1 S.Ct., at 259.
17
United States v. Lee was a five-to-four decision. But as late as 1947 seven members of the Court agreed to the statement in Land v. Dollar, 330 U.S. 731, 737, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209, that '(w)here the right to possession or enjoyment of property under general law is in issue, and the defendants claim as officers or agents of the sovereign, the rule of United States v. Lee, supra, has been repeatedly approved.' Two years later in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, the case of United States v. Lee was attempted to be distinguished in the manner indicated by the Court. But the Larson decision was six to three, Mr. Justice Rutledge concurring in the result and my vote being the fifth. But I explained my concurrence on the following grounds:
18
'I think that the principles announced by the Court are the ones which should govern the selling of government property. Less strict applications of those principles would cause intolerable interference with public administration. To make the right to sue the officer turn on whether by the law of sales title had passed to the buyers would clog this governmental function with intolerable burdens. * * *' Id., at 705, 69 S.Ct., at 1469.
19
The holding in United States v. Lee has thus not been repudiated or necessarily restricted by anything decided prior to today.
20
The Court is quite correct in saying that all of our decisions in this field cannot easily be reconciled; and the same will doubtless be true if said by those who sit here several decades hence. The reason the decisions are not consistent is that policy considerations, not always apparent on the surface, are powerful agents of decision. Thus the Larson case was a suit for specific performance of a contract to sell coal, a matter that courts had long left to damage suits. As I said in my separate concurrence in that case, any other rule would 'clog' government procurement 'with intolerable burdens.' 337 U.S., at 705, 69 S.Ct., at 1469.
21
Ejectment, on the other hand, is the classic form of action to try title. It takes place in the locality where the land is located. No judges are better qualified to try it than the local judges. It is a convenient and ready form of remedy for possession of land. Moreover, the United States, not being a party, is not bound by the state court decree. If it is aggrieved by the state or federal court ruling on title, it can bring its arsenal of power into play. Eminent domain—with the power immediately to take possession—is available.
22
If, however, the citizen must bow to the doctrine of sovereign immunity, he is precluded from any relief except a suit for damages under 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b) or 28 U.S.C. § 1346(a)(2), 28 U.S.C.A. § 1346(a)(2), or 28 U.S.C. § 1491, 28 U.S.C.A. § 1491. This places the advantage with an all-powerful Government, not with the citizen. He may, as the Court says go into court and get the value of his property. But he does not get his property, even though we assume, as we must, that the Government is not the rightful claimant.
23
The result is at war with our prior decisions. Those remedies with which the Court leaves the property owner are not 'special remedies' provided to 'displace those that otherwise would be at the plaintiffs command.' See Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 567, 42 S.Ct. 386, 388, 66 L.Ed. 762. As stated by Mr. Justice FRANKFURTER:
24
'when there is such a special remedy the suit against the officer is barred not because he enjoys the immunity of the sovereign but because the sovereign can constitutionally change the traditional rules of liability for the tort of the agent by providing a fair substitute. Crozier v. Fried, 224 U.S. 290, 32 S.Ct. 488, 56 L.Ed. 771; Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303. But the general statute permitting suit in the Court of Claims in certain instances against the Government is not a statute that provides that remedies otherwise at the plaintiff's command are to be displaced. A holding that the availability of an action for monetary damages in the Court of Claims against the United States prevents a suit at law, or, if the necessary requisites for equity jurisdiction are present, in equity, against the governmental agent, would be as novel as it is indefensible in the light of the settled course of decisions. Indeed, this argument is not novel; it has been explicitly negatived in at least two cases. See Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S. 549, 567, 568, 42 S.Ct. 386, 388, 66 L.Ed. 762; Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209.' Larson v. Domestic & Foreign Corp., supra, at 337 U.S. 722—723, 69 S.Ct., at 1478 (dissenting opinion).
25
What Mr. Justice Miller said in United States v. Lee, supra, 106 U.S. 220, 221, 1 S.Ct. 240, 261, needs repeating:
26
'No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.
27
'It cannot be, then, that when in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession of the property according to all the forms of judicial procedure, and by the verdict of a jury and the judgment of the court, the wrongful possessor can say successfully to the court, 'Stop, here; I hold by order of the president, and the progress of justice must be stayed.' That, though the nature of the controversy is one peculiarly appropriate to the judicial function, though the United States is no party to the suit, though one of the three great branches of the government to which by the constitution this duty has been assigned has declared its judgment after a fair trial, the unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the secretary of war, which that officer had no more authority to make than the humblest private citizen.'
28
Sovereign immunity has become more and more out of date, as the powers of the Government and its vast bureaucracy have increased. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 390, 59 S.Ct. 516, 518, 83 L.Ed. 784 et seq. To give the agent immunity from suit is, to use the words of Mr. Justice Holmes:
29
'a very dangerous departure from one of the first principles of our system of law. The sovereign properly so called is superior to suit for reasons that often have been explained. But the general rule is that any person within the jurisdiction always is amenable to the law. If he is sued for conduct harmful to the plaintiff his only shield is a constitutional rule of law that exonerates him. Supposing the powers of the Fleet Corporation to have been given to a single man we doubt if anyone would contend that the acts of Congress and the delegations of authority from the President left him any less liable than other grantees of the power of eminent domain to be called upon to defend himself in court. An instrumentality of Government he might be and for the greatest ends, but the agent, because he is agent, does not cease to be answerable for his acts.' Sloan Shipyards v. United States Fleet Corp., supra, 258 U.S. pp. 566—567, 42 S.Ct. p. 388.
30
The balance between the convenience of the citizen and the management of public affairs is a recurring consideration in suits determining when and where a citizen can sue a governmental official. See Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95. The balance is, in my view, on the side of the citizen where he claims realty in the Government's possession and where there are ready means of adjudicating the title. If legal title is actually in the claimant, if the action of the official in taking possession under authority of the United States is ultra vires, what objectionable interference with governmental functions can be said to exist?
31
I am authorized to say that Mr. Justice HARLAN agrees with this opinion.
1
The original pleading was in the fictitious common law form in use in Georgia, Ga. Code Ann. § 33—111, alleging that John Doe, as a lessee of the respondents, had entered the land in question and had been forceably ejected by Richard Roe. The petitioner and the United States were served with process, which was accompanied by a 'Notice to the Real Defendants,' stating that Richard Roe had 'acted as casual ejector only.' The subsequent dismissal of the United States as a petitioner is not challenged here.
2
This assertion did not appear on the face of the original pleadings because of their fictitious form. In a subsequent brief, however, the respondents explained the basis of their claim. They alleged that an 1857 will had devised a life estate in the land to Martha A. Sanders, with remainder over to her children, and that in 1873 Mrs. Sanders had devised the land in fee to mesne grantors of the United States, which had acquired title in 1936. Mrs. Sanders died in 1928, and the respondents claimed to be the remaindermen under the 1857 will.
3
28 U.S.C. § 1442(a), 28 U.S.C.A. § 1442(a) provides:
'A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
'(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
'(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.
'(3) Any officer of the courts of the United States, for any Act under color of office or in the performance of his duties;
'(4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House.'
4
The District Court's opinion is reported sub nom. Doe v. Roe, D.C., 186 F.Supp. 407.
5
A petition for rehearing was denied, 5 Cir., 287 F.2d 282.
6
Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 452, 3 S.Ct. 292, 296, 297, 27 L.Ed. 992; Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137; Scranton v. Wheeler, 179 U.S. 141, 152—153, 21 S.Ct. 48, 52—53, 45 L.Ed. 126; Philadelphia Co. v. Stimson, 223 U.S. 605, 619—620, 32 S.Ct. 340, 343—344, 56 L.Ed. 570; Goltra v. Weeks, 271 U.S. 536, 545, 46 S.Ct. 613, 616, 70 L.Ed. 1074; Ickes v. Fox, 300 U.S. 82, 96, 57 S.Ct. 412, 417, 81 L.Ed. 525; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 50 51, 64 S.Ct. 873—874, 875, 88 L.Ed. 1121; Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209.
7
See Stanley v. Schwalby, 162 U.S. 255, 16 S.Ct. 754, 40 L.Ed. 960; Oregon v. Hitchcock, 202 U.S. 60, 26 S.Ct. 568, 50 L.Ed. 935; Naganab v. Hitchcock, 202 U.S. 473, 26 S.Ct. 667, 50 L.Ed. 1113; Louisiana v. Garfield, 211 U.S. 70, 29 S.Ct. 31, 53 L.Ed. 92; Goldberg v. Daniels, 231 U.S. 218, 34 S.Ct. 84, 58 L.Ed. 191; New Mexico v. Lane, 243 U.S. 52, 37 S.Ct. 348, 61 L.Ed. 588; Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394; cf. Mine Safety Appliance Co. v. Forrestal, 326 U.S. 371, 374—375, 66 S.Ct. 219, 221, 90 L.Ed. 140; Wells v. Roper, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755.
8
See 337 U.S., at 697, n. 17, 69 S.Ct., at 1465. Unlike the situation in the Lee case, there has been at all relevant times a tribunal where the respondents could seek just compensation for the taking of their land by the United States. That tribunal is the Court of Claims. United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1064, 90 L.Ed. 1206.
9
If such a claim is to be made, 'it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies.' Larson v. Domestic & Foreign Corp., 337 U.S. 682, 690, 69 S.Ct. 1457, 1461. While this requirement could probably not have been precisely complied with here because of the fictitious form of pleading involved, no such claim was ever suggested at any state of the proceedings.
| 89
|
369 U.S. 654
82 S.Ct. 993
8 L.Ed.2d 176
UNITED STATES, Appellant,v.DIEBOLD, INCORPORATED.
No. 286.
Argued April 23, 1962.
Decided May 14, 1962.
Daniel M. Friedman, Washington, D.C., for the appellant.
William L. McGovern, Washington, D.C., for the appellee.
PER CURIAM.
1
This is a civil antitrust suit by the Government challenging Diebold's acquisition of the assets of the Herring-Hall-Marvin Safe Company as being violative of § 7 of the Clayton Act, 15 U.S.C.A. § 18. On motion of Diebold the District Court entered summary judgment against the Government on the ground that the acquired firm was a 'failing company' under the doctrine of International Shoe Co. v. Federal Trade Comm'n, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431 (1930). The case is here on direct appeal. 368 U.S. 894, 82 S.Ct. 171, 7 L.Ed.2d 91.
2
In determining that the acquisition of the assets of Herring-Hall-Marvin Safe Company was not a violation of § 7, the District Court acted upon its findings that 'HHM was hopelessly insolvent and faced with imminent receivership' and that 'Diebold was the only bona fide prospective purchaser for HHM's business.' The latter finding represents at least in part the resolution of a head-on factual controversy as revealed by the materials before the District Court of whether other offers for HHM's assets or business were actually made. In any event both findings represent a choice of inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits, and depositions submitted below. On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. A study of the record in this light leads us to believe that inferences contrary to those drawn by the trial court might be permissible. The materials before the District Court having thus raised a genuine issue as to ultimate facts material to the rule of International Shoe Co. v. Federal Trade Comm'n, it was improper for the District Court to decide the applicability of the rule on a motion for summary judgment. Fed.Rules Civ.Proc., 56(c), 28 U.S.C.A.
3
Reversed and remanded.
4
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
| 89
|
369 U.S. 659
82 S.Ct. 1035
8 L.Ed.2d 273
Adolph HOHENSEEv.NEW SYNDICATE, INC., etc.
No. 214.
Supreme Court of the United States
May 14, 1962
Rehearing Denied June 11, 1962.
See 370 U.S. 920, 82 S.Ct. 1552.
James C. Newton, for petitioner.
Stuart N. Updike, for respondent.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded for consideration in light of Goldlawr, Inc., v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39.
2
Mr. Justice HARLAN and Mr. Justice STEWART, for the reasons given in their dissent in the Goldlawr case, would deny certiorari.
3
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
| 89
|
369 U.S. 527
82 S.Ct. 997
8 L.Ed.2d 88
No. 92-6075. Clifford VAUGHAN, Petitioner,v.N. J. ATKINSON, etc., et al.
No. 323.
Argued March 22, 1962.
Decided May 14, 1962.
Rehearing Denied June 25, 1962.
See 370 U.S. 965, 82 S.Ct. 1578.
Case below, 90 Md.App. 79, 607 A.2d 921.
Jacob L. Morewitz, Newport News, Va., Burt M. Morewitz, Newport News, Va., on the brief, for petitioner.
Walter B. Martin, Jr., Norfolk, Va., for respondents.
Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BRENNAN.
1
This is a suit in admiralty brought by a seaman to recover (a) maintenance and cure and (b) damages for failure to pay maintenance and cure.1 The District Court, while disallowing the claim for damages, granted maintenance, less any sums earned by the libellant during the period in question. 200 F.Supp. 802. The Court of Appeals affirmed, Chief Judge Sobeloff dissenting. 291 F.2d 813. The case is here on a writ of certiorari. 368 U.S. 888, 82 S.Ct. 143, 7 L.Ed.2d 87.
2
Libellant served on respondents'2 vessel from November 26, 1956, to March 2, 1957, when he was discharged on termination of a voyage. On March 7, 1957, he reported to a United States Public Health Service Hospital for examination and was admitted on March 18, 1957, as an inpatient, and treated for suspected tuberculosis. On June 6, 1957, he was discharged to an outpatient status and he remained in that status for over two years. On August 25, 1959, he was notified that he was fit for duty as of August 19, 1959.
3
The hospital records show a strong probability of active tuberculosis. The Master furnished libellant a certificate to enter the hospital on his discharge, March 2, 1957. Though libellant forwarded to the owner's agent an abstract of his clinical record at the hospital in 1957, the only investigation conducted by them was an interrogation of the Master and Chief Engineer, who stated that the libellant had never complained of any illness during his four months' service. The owner made no effort to make any further investigation of libellant's claim for maintenance and cure, and according to the findings did not bother even to admit or deny the validity of that claim. Nearly two years passed during which libellant was on his own. Ultimately he was required to hire an attorney and sue in the courts to recover maintenance and cure, agreeing to pay the lawyer a 50% contingent fee. Even so, the District Court held that no damages for failure to furnish maintenance and cure had been shown. In its view such damages are payable not for attorney's fees incurred but only when the failure to furnish maintenance and cure caused or agravated the illness or other physical or mental suffering.
4
The District Court first allowed maintenance at the rate of $8 a day from June 6, 1957, to February 18, 1959. Since libellant during that period had worked as a taxi driver, the District Court ordered that his earnings be deducted from the amount owed by respondents. Subject to that credit, the order also provided that maintenance at $8 per day be continued until such time as the libellant reached the maximum state of recovery. The District Court allowed in addition 6% interest for each week's maintenance unpaid. Subsequently the District Court extended the maintenance to cover the period from March 7, 1957, to March 17, 1957, and from February 18, 1959, through August 25, 1959, these later awards being without interest.
5
The Court of Appeals denied counsel fees as damages, relying on the conventional rule that in suits for breach of contract the promisee is not allowed that item in computing the damages payable by the promisor. And the Court of Appeals, following Wilson v. United States, 229 F.2d 277, and Perez v. Suwanee S.S. Co., 239 F.2d 180, from the Second Circuit, held that a seaman has the duty to mitigate damages and that since 'the purpose of maintenance and cure is to make the seaman whole,' 'he will get something more than he is entitled to' unless his earnings during the period are deducted. 291 F.2d, at 814, 815.
6
We disagree with the lower courts on both points.
I.
7
Equity is no stranger in admiralty; admiralty courts are, indeed, authorized to grant equitable relief. See Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 691—692, 70 S.Ct. 861, 866, 94 L.Ed. 1206, where we said, 'We find no restriction upon admiralty by chancery so unrelenting as to bar the grant of any equitable relief even when that relief is subsidiary to issues wholly within admiralty jurisdiction.'
8
Counsel fees have been awarded in equity actions, as where Negroes were required to bring suit against a labor union to prevent discrimination. Rolax v. Atlantic Coast Line R. Co., 4 Cir., 186 F.2d 473, 481. As we stated in Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 164, 59 S.Ct. 777, 779, 83 L.Ed. 1184, allowance of counsel fees and other expenses entailed by litigation, but not included in the ordinary taxable costs regulated by statute, is 'part of the historic equity jurisdiction of the federal courts.' We do not have here that case. Nor do we have the usual problem of what constitutes 'costs' in the conventional sense. Cf. The Baltimore, 8 Wall. 377, 19 L.Ed. 463. Our question concerns damages. Counsel fees were allowed in The Apollon, 9 Wheat. 362, 379, 6 L.Ed. 111, an admiralty suit where one party was put to expense in recovering demurrage of a vessel wrongfully seized. While failure to give maintenance and cure may give rise to a claim for damages for the suffering and for the physical handicap which follows (The Iroquois, 194 U.S. 240, 24 S.Ct. 640, 48 L.Ed. 955), the recovery may also include 'necessary expenses.' Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368.
9
In the instant case respondents were callous in their attitude, making no investigation of libellant's claim and by their silence neither admitting nor denying it. As a result of that recalcitrance, libellant was forced to hire a lawyer and go to court to get what was plainly owed him under laws that are centuries old. The default was willful and persistent. It is difficult to imagine a clearer case of damages suffered for failure to pay maintenance than this one.3
II.
10
Maintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship's service; and it extends during the period when he is incapacitated to do a seaman's work and continues until he reaches maximum medical recovery. The policy underlying the duty was summarized in Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 653, 82 L.Ed. 993:
11
'The reasons underlying the rule, to which reference must be made in defining it, are those enumerated in the classic passage by Mr. Justice Story in Harden v. Gordon, C.C., Fed.Cas.No. 6047: The protection of seamen, who, as a class, are poor, friendless and improvident, from the hazards of illness and abandonment while ill in foreign ports; the inducement to masters and owners to protect the safety and health of seamen while in service; and maintenance of a merchant marine for the commercial service and maritime defense of the nation by inducing men to accept employment in an arduous and perilous service.'
12
Admiralty courts have been liberal in interpreting this duty 'for the benefit and protection of seamen who are its wards.' Id., at 529, 58 S.Ct. at 654. We noted in Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 933, 934, 87 L.Ed. 1107, that the shipowner's liability for maintenance and cure was among 'the most pervasive' of all and that it was not to be defeated by restrictive distinctions nor 'narrowly confined.' Id., at 735, 63 S.Ct. at 936. When there are ambiguities or doubts, they are resolved in favor of the seaman. Warren v. United States, 340 U.S. 523, 71 S.Ct. 432, 95 L.Ed. 503.
13
Maintenance and cure differs from rights normally classified as contractual. As Mr. Justice Cardozo said in Cortes v. Baltimore Insular Line, supra, 371 of 287 U.S., 174 of 53 S.Ct., the duty to provide maintenance and cure4 'is imposed by the law itself as one annexed to the employment. * * * Contractual it is in the sense that it has its source in a relation which is contractual in origin, but given the relation, no agreement is competent to abrogate the incident.'
14
In Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468, we held that a seaman who while an outpatient was living on his parents' ranch without cost to himself was not entitled to maintenance payments. There maintenance and cure was wholly provided by others. Here the libellant was on his own for nearly two years and required to work in order to survive. It would be a sorry day for seamen if shipowners, knowing of the claim for maintenance and cure, could disregard it, force the disabled seaman to work, and then evade part or all of their legal obligation by having it reduced by the amount of the sick man's earnings. This would be a dreadful weapon in the hands of unconscionable employers and a plain inducement, as Chief Judge Sobeloff said below (291 F.2d, at 820), to use the withholding of maintenance and cure as a means of forcing sick seamen to go to work when they should be resting, and to make the seamen themselves pay in whole or in part the amounts owing as maintenance and cure. This result is at war with the liberal attitude that heretofore has obtained and with admiralty's tender regard for seamen. We think the view of the Third Circuit (see Yates v. Dann, 223 F.2d 64, 67) is preferable to that of the Second Circuit as expressed in Wilson v. United States and Perez v. Suwanee S.S. Co., supra, and to that of the Fourth Circuit in this case.
15
Reversed.
16
Mr. Justice FRANKFURTER took no part in the decision of this case.
17
Mr. Justice WHITE took no part in the consideration or decision of this case.
18
Mr. Justice STEWART, whom Mr. Justice HARLAN joins, dissenting.
19
I agree with the Court that whether earnings received by a disabled seaman prior to his maximum medical recovery are to be credited against the shipowner's obligation for maintenance is an issue which should not be resolved by a mechanical application of the rules of contract law relating to mitigation of damages. But I cannot agree that in this case the petitioner's earnings should not have been set off against the maintenance owed to him. Nor can I agree with the Court's conclusion that the petitioner is entitled as a matter of law to damages in the amount of the counsel fees expended in his suit for maintenance and cure.
20
The duty to provide maintenance and cure is in no real sense contractual, and a suit for failure to provide maintenance or cure can hardly be equated, therefore, with an action for breach of contract. 'The duty * * * is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties.' Cortes v. Baltimore Insular Line, 287 U.S. 367, 372, 53 S.Ct. 173, 174, 77 L.Ed. 368. Moreover, if the seaman's accountability for earnings were to be determined solely by reference to damage mitigation principles of contract law, the breach of the shipowner's duty to pay maintenance would become crucial, since without such a breach on his part no duty to mitigate would arise.1 The assignment of such a dispositive role to the shipowner's failure to perform his obligation would create an unwarranted incentive for refusing to perform it.
21
The issue should be decided, rather, with reference to the scope of the duty which the admiralty law imposes. The obligation of a shipowner, irrespective of fault, to provide maintenance and cure to a seaman injured or taken ill while in the ship's service has lost much of its original significance in this era of relaxed unseaworthiness and negligence concepts. But the obligation is of ancient origin,2 first recognized in our law in Harden v. Gordon, 11 Fed.Cas. 480, No. 6,047, and Reed v. Canfield, 20 Fed.Cas. 426, No. 11,641.3 The duty was historically imposed in order to alleviate the physical and financial hardships which otherwise would have beset a sick or injured seaman put ashore, perhaps in a foreign port, without means of support, or hope of obtaining medical care. See Harden v. Gordon, supra, 11 Fed.Cas. at 483 (Story, J.). The law of the sea sought to alleviate these hardships, partly for humanitarian reasons, and partly because of the strong national interest in maintaining the morale and physical effectiveness of the merchant marine. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 653, 82 L.Ed. 993.
22
But '(t)he duty does not extend beyond the seaman's need.' Calmar S.S. Corp. v. Taylor, supra, at 531, 58 S.Ct. at 654. It ends absolutely when a point of maximum medical recovery has been reached. Id., at 530, 58 S.Ct. at 654; Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850. And when the seaman has not incurred expense, the shipowner has no obligation to make payment.4 Thus a seaman hospitalized without expense in a marine hospital is not entitled to maintenance and cure for that period. Calmar S.S. Corp. v. Taylor, supra, at 531, 58 S.Ct. at 654. Nor must the shipowner pay maintenance to a seaman who convalesces at the home of his parents without incurring expense or liability for his support. Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 393, 394, 92 L.Ed. 468.
23
Since the limited purpose of maintenance is to make the seaman whole, it would logically follow that there should be no such duty for periods when the seaman, though not yet at the point of maximum cure, either does in fact obtain equivalently gainful employment or is able to do so.5 Moreover, no rule which keeps able workers idle can be deemed a desirable one.6 But there are countervailing policies involved in resolving the issue. The adequate protection of an injured or ill seaman against suffering and want requires more than the assurance that he will receive payments at some time in the indefinite future. Payments must be promptly made, at a time contemporaneous to the illness or injury. And for this reason the maintenance remedy should be kept simple, uncluttered by fine distinctions which breed litigation, with its attendant delays and expenses. See Farrell v. United States, 336 U.S. 511, 516, 69 S.Ct. 707, 709, 710, 93 L.Ed. 850. A shipowner should therefore not be encouraged to withhold maintenance payments in the hope that economic necessity will force the seaman back to work and thereby reduce the shipowner's liability. Moreover, maintenance payments are designed to meet the living expenses of the seaman until maximum cure is reached. The ultimate goal is the recovery of the seaman, and this requires the avoidance of pressures which would force him to obtain employment which hinders his recovery.7
24
The need for prompt payment and the desirability of avoiding any rule which might force a seaman back to work to the detriment of his recovery might well require that no compulsion to seek employment be placed on a convalescing seaman, and that a setoff be allowed only with respect to actual, as opposed to potential, earnings. But this question is not presented by the record before us. Similarly, it may well be that a seaman should not be held to account for actual earnings to a shipowner whose dereliction in making payments compels the seaman, as a matter of economic necessity, to obtain gainful employment. But that question is not presented by the present case either, for there is no showing here that the seaman's return to work was brought on by economic necessity. So far as the record before us indicates, the petitioner's return to work was completely voluntary, and not the result of the shipowner's failure to pay maintenance. Holding the seaman accountable for his earnings in such circumstances carries out the basic purpose of making the seaman whole, and creates neither an undue incentive for withholding payments, nor pressure compelling a premature return to work. I therefore think that the District Court and the Court of Appeals were right in holding that the petitioner was not entitled to maintenance for the period during which he was gainfully employed as a taxicab driver.8
25
The second issue presented in this case is whether the petitioner should have been awarded damages in the amount of the counsel fees incurred in bringing his action for maintenance and cure. The Court held in Cortes v. Baltimore Insular Line, supra, at 371, 53 S.Ct. at 174, that '(i)f the failure to give maintenance or cure has caused or aggravated an illness, the seaman has his right of action for the injury thus done to him; the recovery in such circumstances including not only necessary expenses, but also compensation for the hurt.' But neither the Cortes decision, nor any other that I have been able to find, furnishes a basis for holding as a matter of law that a seaman forced to bring suit to recover maintenance and cure is also entitled to recover his counsel fees. Cortes dealt with compensatory damages for a physical injury, and the opinion in that case contains nothing to indicate a departure from the well-established rule that counsel fees may not be recovered as compensatory damages. McCormick, Damages, § 61.
26
However, if the shipowner's refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages. McCormick, Damages, § 79. While the amount so awarded would be in the discretion of the fact finder, and would not necessarily be measured by the amount of counsel fees, indirect compensation for such expenditures might thus be made. See Day v. Woodworth, 13 How. 363, 371, 14 L.Ed. 181. On this issue I would accordingly remand the case to the District Court, so that the circumstances which motivated the respondents' failure to make maintenance payments could be fully canvassed.
1
Claims for damages for the illness and for wages, disallowed below, are not presented here.
2
The owner was American Waterways Corp., and National Shipping & Trading Corp. was its agent, both being respondents. Respondent Atkinson was the Master.
3
Whether counsel fees in the amount of 50% of the award are reasonable is a matter on which we express no opinion, as it was not considered by either the District Court or the Court of Appeals.
4
It derives from Article VI of the Laws of Oleron, 30 Fed.Cas. 1171, 1174:
'If any of the mariners hired by the master of any vessel, go out of the ship without his leave, and get themselves drunk, and thereby there happens contempt to their master, debates, or fighting and quarrelling among themselves, whereby some happen to be wounded: in this case the master shall not be obligated to get them cured, or in any thing to provide for them, but may turn them and their accomplices out of the ship; and if they make words of it, they are bound to pay the master besides: but if by the master's orders and commands any of the ship's company be in the service of the ship, and thereby happen to be wounded or otherwise hurt, in that case they shall be cured and provided for at the costs and charges of the said ship.'
Justice Story, in holding that maintenance and cure was a charge upon the ship, said concerning its history:
'The same principle is recognised in the ancient laws of Wisbuy (Laws of Wisbuy, art. 19), and in those of Oleron, which have been held in peculiar respect by England, and have been in some measure incorporated into her maritime jurisprudence. The Consolato del Mare does not speak particularly on this point; but from the provisions of this venerable collection of maritime usages in cases nearly allied, there is every reason to infer, that a similar rule then prevailed in the Mediterranean. Consolato del Mare, cc. 124, 125; Boucher, Consulat de la Mer, cc. 127, 128. Molloy evidently adopts it as a general doctrine of maritime law (Molloy, b. 2, c. 3, § 5, p. 243); and two elementary writers of most distinguished reputation have quoted it from the old ordinances without the slightest intimation, that it was not perfectly consonant with the received law and usage of England. Abb. Shipp. p. 2, c. 4, § 14; 2 Brown, Adm. 182—184. There is perhaps upon this subject a greater extent and uniformity of maritime authority, than can probably be found in support of most of those principles of commercial law, which have been so successfully engrafted into our jurisprudence within the last century.' Harden v. Gordon, 11 Fed.Cas. 480, 483.
1
McCormick, Damages, §§ 158—160; Restatement, Contracts, § 336(1); 5 Corbin, Contracts, § 1041.
2
The earliest codifications of the law of the sea provided for medical treatment and wages for mariners injured or falling ill in the ship's service. These early maritime codes are, for the most part, reprinted in 30 Fed.Cas. 1171—1216. See Arts. VI and VII of the Laws of Oleron, 30 Fed.Cas. 1174—1175; Arts. XVIII, XIX, and XXXIII of the Laws of Wisbuy, 30 Fed.Cas. 1191, 1192; Arts. XXXIX and XLV of the Laws of the Hanse Towns, 30 Fed.Cas. 1200; and Title Fourth, Arts. XI and XII, of the Marine Ordinances of Louis XIV, 30 Fed.Cas. 1209. These provisions may also be found reprinted in 2 Norris, The Law of Seamen, § 537. Other provisions rather similar to the present maintenance and cure remedy may be found in the Ordinances of Trani, Art. X, 4 Black Book of the Admiralty (Twiss' ed. 1876) 531; The Tables of Amalphi, Art. 14, 4 Black Book of the Admiralty (Twiss' ed. 1876) 13.
3
See Gilmore and Black, Admiralty, 253.
4
See Stankiewicz v. United Fruit S.S. Corp., 2 Cir., 229 F.2d 580; Williams v. United States, 4 Cir., 228 F.2d 129; Dodd v. The M/V Peggy G., D.C., 149 F.Supp. 823; Nunes v. Farrell Lines, Inc., D.C., 129 F.Supp. 147, affirmed as to this point, 1 Cir., 227 F.2d 619; Ballard v. Alcoa S.S. Co., Inc., 122 F.Supp. 10; Gilmore and Black, Admiralty, 266; 2 Norris, The Law of Seamen, § 568.
5
Similarly, there is generally no duty to make payments for cure if marine hospital service is available, and a seaman seeks hospitalization elsewhere. United States v. Loyola, 9 Cir., 161 F.2d 126; United States v. Johnson, 9 Cir., 160 F.2d 789; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; Zackey v. American Export Lines, Inc., D.C., 152 F.Supp. 772; Benton v. United Towing Co., D.C., 120 F.Supp. 638. See Kossick v. United Fruit Co., 365 U.S. 731, 737, 81 S.Ct. 886, 891, 6 L.Ed.2d 56; Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531, 58 S.Ct. 651, 654, 82 L.Ed. 993. In exceptional circumstances, however, where adequate treatment is not available at a marine hospital, expenses incurred for hospitalization elsewhere may be chargeable to the shipowner. Williams v. United States, D.C., 133 F.Supp. 319, aff'd 4 Cir., 228 F.2d 129.
6
Actual earnings during a period prior to maximum cure have been allowed as an offset against maintenance payments in many reported cases, usually without discussion. Rodgers v. United States Lines Co., 4 Cir., 189 F.2d 226; Inter Ocean S.S. Co. v. Behrendsen, 6 Cir., 128 F.2d 506; Loverich v. Warner Co., 3 Cir., 118 F.2d 690; Colon v. Trinidad Corp., D.C., 188 F.Supp. 97; Scott v. Lykes Bros. S.S. Co., D.C., 152 F.Supp. 104; Benton v. United Towing Co., D.C., 120 F.Supp. 638, aff'd, 9 Cir, 224 F.2d 558; Steinberg v. American Export Lines, Inc., D.C., 81 F.Supp. 362; Burch v. Smith, D.C., 77 F.Supp. 6; The Eastern Dawn, D.C., 25 F.2d 322. In Wilson v. United States, 2 Cir., 229 F.2d 277, the court held, after discussion, that the shipowner should be permitted to offset potential earnings, the seaman having failed to establish that he could not have secured work. The seaman had done some work during the period, and had not sought maintenance for the days he was actually employed. The same court subsequently ruled that under Wilson a recuperating seaman must account for actual earnings. Perez v. Suwanee S.S. Co., 2 Cir., 239 F.2d 180.
In three cases setoff of actual earnings has been denied. In Yates v. Dann, D.C., 124 F.Supp. 125, the district judge found that the seaman had been 'in need' throughout the whole period and should not be 'penalized' because he returned to work. The case was reversed on other grounds, 3 Cir., 223 F.2d 64, the court sustaining the ruling of the District Court on this point with the statement that 'the circumstance that appellee was forced by financial necessity to return to his regular employment is not legally a bar to his recovery.' 223 F.2d, at 67. See also Hanson v. Reiss Steamship Co., D.C., 184 F.Supp. 545, 550 ('Liability for maintenance and cure does not necessarily cease when the injured person obtains gainful occupation where such employment is compelled or induced by economic necessity.'); Meirino v. Gulf Oil Corp., D.C., 170 F.Supp. 515, 517 ('The fact that libellant returned to work because of economic necessity while he was in need of medical care and attention does not deprive him of his right to maintenance and cure.').
7
A seaman whose condition is actually aggravated by reason of the shipowner's dereliction in making maintenance and cure payments may of course seek damages above and beyond the maintenance and cure payments due. Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368. But the availability of this remedy does not detract from the importance of avoiding the harmful effects of a premature return to work.
8
I would, however, remand the case to the District Court for recomputation of its award. Maintenance is a day-by-day concept, and in my view maintenance should be reduced or denied only as to days during which the petitioner was gainfully employed. Instead, the District Court computed the total amount of maintenance due, and then deducted the total amount earned by the petitioner. Compare Perez v. Suwanee S.S. Co., 2 Cir., 239 F.2d 180, with Wilson v. United States, 2 Cir., 229 F.2d 277. See the full discussion of this aspect of the problem in Note, 37 N.Y.U.L.Rev. 316, 320—321.
| 78
|
369 U.S. 590
82 S.Ct. 987
8 L.Ed.2d 130
Herbert W. GOLDBLATT et al., Appellants,v.TOWN OF HEMPSTEAD, NEW YORK.
No. 78.
Argued Jan. 15, 16, 1962.
Decided May 14, 1962.
Milton I. Newman, New York City, for the appellants.
William C. Mattison, Brooklyn, N.Y., for the appellee.
Mr. Justice CLARK delivered the opinion of the Court.
1
The Town of Hempstead has enacted an ordinance regulating dredging and pit excavating on property within its limits. Appellants, who engaged in such operations prior to the enactment of the ordinance, claim that it in effect prevents them from continuing their business and therefore takes their property without due process of law in violation of the Fourteenth Amendment. The trial court held that the ordinance was a valid exercise of the town's police power, 19 Misc.2d 176, 186 N.Y.S.2d 577, and the Appellate Division affirmed, 9 A.D.2d 941, 196 N.Y.S.2d 573. The New York Court of Appeals in a divided opinion affirmed. 9 N.Y.2d 101, 211 N.Y.S.2d 185, 172 N.E.2d 562. We noted probable jurisdiction, 366 U.S. 942, 81 S.Ct. 1673, 6 L.Ed.2d 854, and having heard argument we now affirm the judgment.
2
Appellant Goldblatt owns a 38-acre tract within the Town of Hempstead. At the time of the present litigation appellant Builders Sand and Gravel Corporation was mining sand and gravel on this lot, a use to which the lot had been put continuously since 1927. Before the end of the first year the excavation had reached the water table leaving a waterfilled crater which has been widened and deepened to the point that it is now a 20-acre lake with an average depth of 25 feet. The town has expanded around this excavation, and today within a radius of 3,500 feet there are more than 2,200 homes and four public schools with a combined enrollment of 4,500 pupils.
3
The present action is but one of a series of steps undertaken by the town in an effort to regulate mining excavations within its limits. A 1945 ordinance, No. 16, provided that such pits must be enclosed by a wire fence and comply with certain berm and slope requirements. Although appellants complied with this ordinance, the town sought an injunction against further excavation as being violative of a zoning ordinance. This failed because appellants were found to be 'conducting a prior non-conforming use on the premises * * *.' 135 N.Y.L.J., issue 52, p. 12 (1956). The town did not appeal.
4
In 1958 the town amended Ordinance No. 16 to prohibit any excavating below the water table1 and to impose an affirmative duty to refill any excavation presently below that level. The new amendment also made the berm, slope, and fence requirements more onerous.
5
In 1959 the town brought the present action to enjoin further mining by the appellants on the grounds that they had not complied with the ordinance, as amended, nor acquired a mining permit as required by it.2 Appellants contended, inter alia, that the ordinance was unconstitutional because (1) it was not regulatory of their business but completely prohibitor and confiscated their property without compensation, (2) it deprived them of the benefit of the favorable judgment arising from the previous zoning litigation, and (3) it constituted ex post facto legislation. However, the trial court did not agree, and the appellants were enjoined from conducting further operations on the lot until they had obtained a permit and had complied with the new provisions of Ordinance No. 16.
6
Concededly the ordinance completely prohibits a beneficial use to which the property has previously been devoted. However, such a characterization does not tell us whether or not the ordinance is unconstitutional. It is an oft-repeated truism that every regulation necessarily speaks as a prohibition. If this ordinance is otherwise a valid exercise of the town's police powers, the fact that it deprives the property of its most beneficial use does not render it unconstitutional. Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276 (1920); Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900 (1915); Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887); see Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 30 S.Ct. 301, 54 L.Ed. 515 (1910). As pointed out in Mugler v. Kansas, supra, 123 U.S. at 668—669, 8 S.Ct. at 301:
7
'(T)he present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. * * * The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.'
8
Nor is it of controlling significance that the 'use' prohibited here is of the soil itself as opposed to a 'use' upon the soil, cf. United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958), or that the use prohibited is arguably not a common-law nuisance, e.g., Reinman v. Little Rock, supra.
9
This is not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); see United States v. Central Eureka Mining Co., supra. There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant, see Pennsylvania Coal Co. v. Mahon, supra, it is by no means conclusive, see Hadacheck v. Sebastian, supra, where a diminution in value from $800,000 to $60,000 was upheld. How far regulation may go before it becomes a taking we need not now decide, for there is no evidence in the present record which even remotely suggests that prohibition of further mining will reduce the value of the lot in question.3 Indulging in the usual presumption of constitutionality, infra, 369 U.S., p. 596, 82 S.Ct., p. 991, we find no indication that the prohibitory effect of Ordinance No. 16 is sufficient to render it an unconstitutional taking if it is otherwise a valid police regulation.
10
The question, therefore, narrows to whether the prohibition of further excavation below the water table is a valid exercise of the town's police power. The term 'police power' connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of 'reasonableness,' this Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894), is still valid today:
11
'To justify the state in * * * interposing its authority in behalf of the public, it must appear—First, that the interests of the public * * * require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.'
12
Even this rule is not applied with strict precision, for this Court has often said that 'debatable questions as to reasonableness are not for the courts but for the Legislature * * *.' E.g., Sproles v. Binford, 286 U.S. 374, 388, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932).
13
The ordinance in question was passed as a safety measure, and the town is attempting to uphold it on that basis. To evaluate its reasonableness we therefore need to know such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss which appellants will suffer from the imposition of the ordinance.
14
A careful examination of the record reveals a dearth of relevant evidence on these points. One fair inference arising from the evidence is that since a few holes had been burrowed under the fence surrounding the lake it might be attractive and dangerous to children. But there was no indication whether the lake as it stood was an actual danger to the public or whether deepening the lake would increase the danger. In terms of dollars or some other objective standard, there was no showing how much, if any thing, the imposition of the ordinance would cost the appellants. In short, the evidence produced is clearly indecisive on the reasonableness of prohibiting further excavation below the water table.
15
Although one could imagine that preventing further deepening of a pond already 25 feet deep would have a de minimis effect on public safety, we cannot say that such a conclusion is compelled by facts of which we can take notice. Even if we could draw such a conclusion, we would be unable to say the ordinance is unreasonable; for all we know, the ordinance may have a de minimis effect on appellants. Our past cases leave no doubt that appellants had the burden on 'reasonableness.' E.g., Bibb v. Navajo Freight Lines, 359 U.S. 520, 529, 79 S.Ct. 962, 967, 3 L.Ed.2d 1003 (1959) (exercise of police power is presumed to be constitutionally valid); Salsburg v. Maryland, 346 U.S. 545, 553, 74 S.Ct. 280, 284, 98 L.Ed. 281 (1954) (the presumption of reasonableness is with the State); United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938) (exercise of police power will be upheld if any state of facts either known or which could be reasonably assumed affords support for it). This burden not having been met, the prohibition of excavation on the 20-acre-lake tract must stand as a valid police regulation.
16
We now turn our attention to the remainder of the lot, the 18 acres surrounding the present pit which have not yet been mined or excavated. Appellants themselves contend that this area cannot be mined. They say that this surface space is necessary for the processing operations incident to mining and that no other space is obtainable. This was urged as an important factor in their contention that upholding the depth limitation of the ordinance would confiscate the entire mining utility of their property. However, we have upheld the validity of the prohibition even on that supposition. If the depth limitation in relation to deepening the existing pit is valid, it follows a fortiori that the limitation is constitutionally permissible as applied to prevent the creation of new pits. We also note that even if appellants were able to obtain suitable processing space the geology of the 18-acre tract would prevent any excavation. The water table, appellants admit, is too close to the ground surface to permit commercial mining in the face of the depth restrictions of the ordinance. The impossibility of further mining makes it unnecessary for us to decide to what extent the berm and slope of such excavation could be limited by the ordinance.
17
Appellants' other contentions warrant only a passing word. The claim that rights acquired in previous litigation are being undermined is completely unfounded. A successful defense to the imposition of one regulation does not erect a constitutional barrier to all other regulation. The first suit was brought to enforce a zoning ordinance, while the present one is to enforce a safety ordinance. In fact no relevant issues presented here were decided in the first suit.4 We therefore do not need to consider to what extent such issues would have come under the protective wing of due process.
18
Appellants also contend that the ordinance is unconstitutional because it imposes under penalty of fine and imprisonment such affirmative duties as refilling the existing excavation and the construction of a new fence. This claim is founded principally on the constitutional prohibitions against bills of attainder and ex post facto legislation.5 These provisions are severable, both in nature and by express declaration, from the prohibition against further excavation. Since enforcement of these provisions was not sought in the present litigation, this Court under well-established principles will not at this time undertake to decide their constitutionality. E.g., Ohio Tax Cases, 232 U.S. 576, 594, 34 S.Ct. 372, 376, 58 L.Ed. 737 (1914); cf. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). That determination must await another day. We pass only on the provisions of the ordinance here invoked, not on probabilities not now before us, and to that extent the judgment is affirmed.
19
Affirmed.
20
Mr. Justice FRANKFURTER took no part in the decision of this case.
21
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
Specifically the ordinance provides that '(n)o excavation shall be made below two feet above the maximum ground water level at the site.'
2
Under the ordinance the town may deny a permit if the proposed excavation will violate any of the provisions of the ordinance.
3
There is a similar scarcity of evidence relative to the value of the processing machinery in the event mining operations were shut down.
4
Although it was adjudicated that at that time appellants had made substantial improvements on the lot, this fact would not be indicative of the loss appellants would presently suffer if the mine were closed; perhaps the improvements are commercially salable.
5
The appellee asserts that these grounds were not properly preserved below. Due to our disposition of these arguments, it is unnecessary to reach this question.
| 34
|
369 U.S. 541
82 S.Ct. 955
8 L.Ed.2d 98
David D. BECK, Petitioner,v.WASHINGTON.
No. 40.
Argued Nov. 14, 1961.
Decided May 14, 1962.
Rehearing Denied June 25, 1962.
See 370 U.S. 965, 82 S.Ct. 1575.
Mr. Justice Douglas, Mr. Justice Black, and Mr. Chief Justice Warren, dissented.
Charles S. Burdell, Seattle, Wash., for petitioner.
James E. Kennedy, Seattle, Wash., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner David D. Beck contends that his conviction of grand larceny in the Superior Court of the State of Washington for King County is invalid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This contention is based primarily on what is characterized as voluminous and continuous adverse publicity circulated by news media in the vicinity of Seattle, Washington, where he was indicted and tried. Specifically he claims, inter alia, that the grand jury was unfairly impaneled and instructed, that the prosecutor acted improperly before the grand jury, and that his motions for a change of venue and for continuances were erroneously denied. The judges of the Supreme Court of Washington divided equally in review, 56 Wash.2d 474, 349 P.2d 387, 353 P.2d 429, leaving petitioner's conviction undisturbed. We granted certiorari limited to the above contentions, 365 U.S. 866, 81 S.Ct. 900, 5 L.Ed.2d 858, and we now affirm the conviction.
2
I. THE PUBLICITY OF WHICH PETITIONER COMPLAINS.
3
In addition to challenges to the grand and petit juries, petitioner prior to the selection of the petit jury made five motions on the ground of bias and prejudice arising from the publicity, viz., one to quash the indictment, three for continuances ranging from one month to an indefinite period, and one for a change of venue to Snohomish or Whatcom County. Petitioner's counsel supported his factual contentions in regard to these various motions by his personal affidavits as well as by photostats of stories appearing in local newspapers and national magazines. We shall now summarize the highlights of the publicity set forth by the petitioner in his moving papers and exhibits.
4
The Select Committee on Improper Activities in the Labor or Management Field of the United States Senate began its investigation on February 26, 1957. In early March the Chairman of the Committee announced that the Committee had 'produced 'rather conclusive' evidence of a tie-up between West Coast Teamsters and underworld bosses to monopolize vice in Portland, Ore.' The announcement also stated that 'Teamsters' President Dave Beck and Brewster (also a Teamster leader) will be summoned for questioning on a charge that they schemed to control Oregon's law enforcement machinery from a local level on up to the governor's chair.'
5
On March 22 the Committee was quoted in the newspapers as stating '$250,000 had been taken from Teamster funds * * * and used for Beck's personal benefit.' Petitioner appeared before the Committee on March 26, and the newspapers reported: 'BECK TAKES 5TH AMENDMENT President of Teamsters 'Very Definitely' Thinks Records Might Incriminate Him.' Television cameras were permitted at the hearings. One Seattle TV station ran an 8 3/4-hour 'live' broadcast of the session on March 27, and films of this session were shown by various TV stations in the Seattle-Tacoma area. The April 12 issue of the U.S. News & World Report ran a caption: 'Take a look around Seattle these days, and you find what a Senate inquiry can do to a top labor leader in his own home town.' On April 26 the county prosecutor announced that a special grand jury would be impaneled in Seattle 'to investigate possible misuse of Teamsters Union funds by international president Dave Beck * * *.' It was later announced that former Mayor Devin of Seattle was to be appointed Chief Special Prosecutor. On May 3 petitioner was indicted by a federal grand jury at Tacoma for income tax evasion. The announcement of this action was of course in front-page headlines. Five days later the petitioner was again called as a witness before the Committee in Washington. News stories on his appearance concentrated on his pleading of the Fifth Amendment 60 times during the hearings. Other stories emanating from the Committee hearings were featured intermittently, and on May 20, the day of the convening of the special grand jury, the Chairman of the Senate Committee announced that 'the Committee has not convicted Mr. Beck of any crime, although it is my belief that he has committed many criminal offenses.' The publicity continued to some degree after the grand jury had been convened and during the three-week period in which the prosecutors were gathering up documentary evidence through the use of grand jury subpoenas. Among other stories that appeared was one of June 4 stating that at the Committee hearings 'Beck, Jr., who even refused to say whether he knew his father, took shelter behind the (fifth) amendment 130 times, following the example of Beck, Sr., who refused to answer 210 times in three appearances before the committee.' The indictment in this case was returned by the special grand jury on July 12 and of course received banner headlines. Intermittent publicity continued, some from Washington, D.C., until August 28 when a federal grand jury indicted petitioner and others on additional income tax evasion counts. The co-conspirators named in this latter indictment were then called before the Committee in Washington, and these hearings, which were held on November 5, brought on additional publicity. On November 12 Dave Beck, Jr., went to trial on other larceny charges and was convicted on November 23, a Saturday. The state papers gave that event considerable coverage. The trial of petitioner in this case began on December 2 and continued until his conviction on December 14.
6
II. THE OBJECTIONS TO THE GRAND JURY PROCEEDINGS.
7
Ever since Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232 (1884), this Court has consistently held that there is no federal constitutional impediment to dispensing entirely with the grand jury in state prosecutions. The State of Washington abandoned its mandatory grand jury practice some 50 years ago.1 Since that time prosecutions have been instituted on informations filed by the prosecutor, on many occasions without even a prior judicial determination of 'probable cause'—a procedure which has likewise had approval here in such cases as Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914), and Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913). Grand juries in Washington are convened only on special occasions and for specific purposes. The grand jury in this case, the eighth called in King County in 40 years, was summoned primarily to investigate circumstances which had been the subject of the Senate Committee hearings.
8
In his attempts before trial to have the indictment set aside petitioner did not contend that any particular grand juror was prejudiced or biased. Rather, he asserted that the judge impaneling the grand jury had breached his duty to ascertain on voir dire whether any prospective juror had been influenced by the adverse publicity and that this error had been compounded by his failure to adequately instruct the grand jury concerning bias and prejudice. It may be that the Due Process Clause of the Fourteenth Amendment requires the State, having once resorted to a grand jury procedure, to furnish an unbiased grand jury. Compare Lawn v. United States, 355 U.S. 339, 349—350, 78 S.Ct. 311, 317—318, 2 L.Ed.2d 321 (1958); Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); Hoffman v. United States, 341 U.S. 479, 485, 71 S.Ct. 814, 817, 95 L.Ed. 1118 (1951). But we find that it is not necessary for us to determine this question; for even if due process would require a State to furnish an unbiased body once it resorted to grand jury procedure—a question upon which we do not remotely intimate any view—we have concluded that Washington, so far as is shown by the record, did so in this case.
9
Petitioner's appearance before the Senate Committee was current news of high national interest and quite normally was widely publicized throughout the Nation, including his home city of Seattle and the State of Washington. His answers to and conduct before the Committee disclosed the possibility that he had committed local offenses within the jurisdiction of King County, Washington, against the laws of that State. In the light of those disclosures the King County authorities were duty-bound to investigate and, if the State's laws had been violated, to prosecute the offenders. It appears that documentary evidence—in the hands of petitioner's union—was necessary to a complete investigation. The only method available to secure such documents was by grand jury process, and it was decided therefore to impanel a grand jury. This Washington was free to do.
10
Twenty-three prospective grand jurors were called. The trial judge explained, as is customary in such matters, that they had been called primarily to investigate possible crimes committed in King County by officers of the Teamsters Union which had been the subject of the Senate Committee hearings. In impaneling the grand jury the judge, after determining their statutory qualifications, businesses, union affiliations and the like, asked each of the prospective jurors: 'Is there anything about sitting on this grand jury that might embarrass you at all?' In answer to this or the question of whether they were conscious of any prejudice or bias, which was asked whenever previous answers suggested a need for further inquiry, two admitted they were prejudiced by the publicity and were excused. Another stated that whether he was prejudiced was 'pretty hard to answer,' and he, too, was excused. In addition three persons who were or had been members of unions that were affiliated with petitioner's union were excused. The remaining 17 were accepted and sworn as grand jurors and as a part of the oath swore that they would not 'present (any) person through envy, hatred or malice.' Among them were a retired city employee who had been a Teamster, the manager of a real estate office, a bookkeeper, an engineer, an airplane manufacturer's employee, a seamstress whose husband was a union member, a material inspector, a gravel company superintendent who was a former Teamsters Union member, a civil engineer with the State Department of Fisheries, and an engineer for a gyroscope manufacturer.
11
In his charge to the grand jury the trial judge explained that its 'function is to inquire into the commission of crime in the county,' that ordinarily this was done 'by the regularly established law enforcement agencies,' but that this was impossible here because further investigation was necessary requiring the attendance of witnesses and the examination of books and records which a prosecutor had no power to compel. As to the purpose for which it was called, he explained that 'disclosures' by the Senate Investigating Committee indicated 'hundreds of thousands of dollars of the funds' of the Teamsters Union had been 'embezzled or stolen' by its officers. He also stated that the president of the Teamsters had 'publicly declared' that the money he had received was a loan.
12
'This presents a question of fact,' he added, 'the truth of which is for you to ascertain.' After mentioning other accusations he concluded, 'I urge you to do all that you can within practical limitations to ascertain the truth or falsity of these charges. * * * You have a most serious task to perform * * *. It is a tremendous responsibility, and I wish you well in your work.'
13
It is true that the judge did not admonish the grand jurors to disregard or disbelieve news reports and publicity concerning petitioner. Nor did he mention or explain the effect of the invocation of the Fifth Amendment by petitioner before the Committee or inquire as to the politics of any panel member. Discussion along such lines might well have added fuel to the flames which some see here. Apparently sensing this dilemma the judge admonished the grand jury that its function was to inquire into the commission of crime in the county and that it was to conduct an examination of witnesses as well as books and records. Twice in his short statement he said that it was for the grand jury to determine whether the charges were true or false. Taking the instructions as a whole, they made manifest that the jurors were to sift the charges by careful investigation, interrogation of witnesses, and examination of records, not by newspaper stories.
14
In the light of these facts and on the attack made we cannot say that the grand jury was biased. It was chosen from the regular jury list. Some six months thereafter a petit jury to try this case was selected from the same community and, as will hereafter be shown, was not found to be prejudiced. Indeed, every judge who passed on the issue in the State's courts, including its highest court, has so held. A look at the grand jury through the record reveals that it was composed of people from all walks of life, some of whom were former union members. The judge immediately and in the presence of all of the panel eliminated six prospective grand jurors when indications of prejudice appeared. No grand juror personally knew petitioner or was shown to be adverse to the institutions with which petitioner is generally identified. Every person who was selected on the grand jury took an oath that he would not indict any person through 'hatred or malice.' Moreover, the grand jury sat for six weeks before any indictment was returned against petitioner. The record also indicates that it heard voluminous testimony on the charges that had been made against petitioner and others and that it gave the matter most meticulous and careful consideration. We therefore conclude that petitioner has failed to show that the body which indicted him was biased or prejudiced against him.
15
In addition to the above due process contention three equal protection arguments are made by petitioner or suggested on his behalf. First, petitioner argues he is a member of a class (Teamsters) that was not accorded equal treatment in grand jury proceedings. The contention is based on references to the Teamsters by the judge impaneling the grand jury as he conducted the voir dire and explained the scope of the investigation. The complete answer to petitioner's argument is that references to the Teamsters were necessary in the voir dire to eliminate persons who might be prejudiced for or against petitioner and in the instructions to explain the purpose and scope of this special body. Petitioner has totally failed to establish that non-Teamsters who are members of groups under investigation are given any different treatment.
16
Secondly, it is said that the Washington statute permitting persons in custody to challenge grand jurors, Revised Code of Washington § 10.28.030, denies equal protection to persons not in custody who are investigated by grand juries. This point is not properly before this Court. Although both opinions of the Washington Supreme Court discuss the interpretation of § 10.28.030, neither considered that question in light of the equal protection argument for that argument was never properly presented to the court in relation to this statute. The Washington Supreme Court has unfailingly refused to consider constitutional attacks upon statutes not made in the trial court, even where the constitutional claims arise from the trial court's interpretation of the challenged statute. E.g., Johnson v. Seattle, 50 Wash.2d 543, 313 P.2d 676 (1957).2 Petitioner's formal attack at the trial court level did not even mention § 10.28.030, much less argue that a restrictive interpretation would be unconstitutional under the Equal Protection Clause.3 That the prosecution and the court viewed petitioner as outside the scope of § 10.28.030 was brought home to him in the course of the trial court proceedings on his grand jury attack. But even then petitioner did not suggest that constitutional considerations might compel a different result. The failure to inject the equal protection contention into the case was carried forward to the proceedings before the Washington Supreme Court when petitioner failed to comply with that court's rule prescribing the manner in which contentions are to be brought to its attention. Rule 43 of the Rules on Appeal, Revised Code of Washington, provides that '(n)o alleged error of the superior court will be considered by this court unless the same be definitely pointed out in the 'assignments of error' in appellant's brief.' Mere generalized attacks upon the validity of the holding below as petitioner made in his 'assignments of error'4 are not considered by reason of this rule sufficient to invoke review of the underlying contentions. See, e.g., Washington v. Tanzymore, 54 Wash.2d 290, 292, 340 P.2d 178, 179 (1959); Fowles v. Sweeney, 41 Wash.2d 182, 188, 248 P.2d 400, 403, (1952). Nor will the Washington Supreme Court search through the brief proper to find specific contentions which should have been listed within the 'assignments of error.' See Washington ex rel. Linden v. Bunge, 192 Wash. 245, 251, 73 P.2d 516, 518—519 (1937). Moreover, the failure of petitioner to argue the constitutional contention in his brief, as opposed to merely setting it forth as he did in one sentence of his 125-page brief, is considered by the Washington Supreme Court to be an abandonment or waiver of such contention. E.g., Martin v. J. C. Penney Co., 50 Wash.2d 560, 565, 313 P.2d 689, 693, 80 A.L.R.2d 697 (1957); Washington v. Williams, 49 Wash.2d 354, 356—357, 301 P.2d 769, 770 (1956). Nor was the equal protection contention made at all in the petitions for rehearing filed after the Supreme Court had agreed with the lower court's interpretation of the statute to exclude petitioner. Assuming arguendo that for the purposes of our jurisdiction the question would have been timely if raised in a petition for rehearing, not having been raised there or elsewhere or actually decided by the Washington Supreme Court, the argument cannot be entertained here under an unbroken line of precedent. E.g., Ferguson v. Georgia, 365 U.S. 570, 572, 81 S.Ct. 756, 758, 5 L.Ed.2d 783 (1961); Capital City Dairy Co. v. Ohio, 183 U.S. 238, 248, 22 S.Ct. 120, 124, 46 L.Ed. 171 (1902). Furthermore, it was not within the scope of the questions to which the writ of certiorari in this case was specifically limited, 365 U.S. 866, 81 S.Ct. 900, 5 L.Ed.2d 858, and for this additional reason cannot now be presented.
17
The final argument under the Equal Protection Clause is that Washington has singled out petitioner for special treatment by denying him the procedural safeguards the law affords others to insure an unbiased grand jury. But this reasoning proceeds on the wholly unsupported assumption that such procedures have been required in Washington in all other cases.5 Moreover, it is contrary to the underlying finding of the Superior Court, in denying the motion to dismiss the indictment, that the grand jurors were lawfully selected and instructed. And even if we were to assume that Washington law requires such procedural safeguards, the petitioner's argument here comes down to a contention that Washington law was misapplied. Such misapplication cannot be shown to be an invidious discrimination. We have said time and again that the Fourteenth Amendment does not 'assure uniformity of judicial decisions * * * (or) immunity from judicial error * * *.' Milwaukee Electric Ry. & Light Co. v. Wisconsin ex rel. Milwaukee, 252 U.S. 100, 106, 40 S.Ct. 306, 309, 64 L.Ed. 476 (1920). Were it otherwise, every alleged misapplication of state law would constitute a federal constitutional question. Finally, were we to vacate this conviction because of a failure to follow certain procedures although it has not been shown that their ultimate end—a fair grand jury proceeding—was not obtained, we would be exalting form over substance contrary to our previous application of the Equal Protection Clause, e.g., Graham v. West Virginia, 224 U.S. 616, 630, 32 S.Ct. 583, 588, 56 L.Ed. 917 (1912).
18
Petitioner also contends that a witness before the grand jury was improperly interrogated in a manner which prejudiced his case before that body. It appears that an employee of petitioner's union was called before the grand jury to testify in reference to activities within his employment. During his first appearance he made statements which he subsequently changed on a voluntary reappearance before the grand jury some two days before the indictment was returned. On the second appearance the prosecutor attacked the witness' changed story as incredible and warned him that he was under oath, that he might be prosecuted for perjury, and that there was no occasion for him to go to jail for petitioner. The record indicates that the prosecutor became incensed over the witness' new story; and though some of his threats were out of bounds, it appears that they had no effect upon the witness whatsoever for he stuck to his story. We can find no irregularity of constitutional proportions, and we therefore reject this contention.
19
III. THE OBJECTIONS AS TO THE PETIT JURY.
20
As in his grand jury attack, petitioner makes no claim that any particular petit juror was biased. Instead, he states the publicity which prevented the selection of a fair grand jury also precluded a fair petit jury. He argues that such a strong case of adverse publicity has been proved that any jury selected in Seattle at the time he was tried must be held to be presumptively biased and that the trial court's adverse rulings on his motions for a change of venue and for continuances were therefore in error. Of course there could be no constitutional infirmity in these rulings if petitioner actually received a trial by an impartial jury. Hence, our inquiry is addressed to that subject.
21
Petitioner's trial began early in December. This was nine and one-half months after he was first called before the Senate Committee and almost five months after his indictment. Although there was some adverse publicity during the latter period which stemmed from the second tax indictment and later Senate hearings as well as from the trial of petitioner's son, it was neither intensive nor extensive. The news value of the original 'disclosures' was diminished, and the items were often relegated to the inner pages. Even the occasional front-page items were straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness. If there was a campaign against him as petitioner infers, it was sidetracked by the appearance of other 'labor bosses' on the scene who shared the spotlight.
22
The process of selecting a jury began with the exclusion from the panel of all persons summoned as prospective jurors in the November 12 trial of Dave Beck, Jr. In addition, all persons were excused who were in the courtroom at any time during the trial of that case. Next, the members were examined by the court and counsel at length. Of the 52 so examined, only eight admitted bias or a preformed opinion as to petitioner's guilt and six others suggested they might be biased or might have formed an opinion—all of whom were excused. Every juror challenged for cause by petitioner's counsel was excused; in addition petitioner was given six peremptory challenges, all of which were exercised. Although most of the persons thus selected for the trial jury had been exposed to some of the publicity related above, each indicated that he was not biased, that he had formed no opinion as to petitioner's guilt which would require evidence to remove, and that he would enter the trial with an open mind disregarding anything he had read on the case.
23
A study of the voir dire indicates clearly that each juror's qualifications as to impartiality far exceeded the minimum standards this Court established in its earlier cases as well as in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), on which petitioner depends. There we stated:
24
'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.' Id., at 723, 81 S.Ct. at 1642.
25
We cannot say the pretrial publicity was so intensive and extensive or the examination of the entire panel revealed such prejudice that a court could not believe the answers of the jurors and would be compelled to find bias or preformed opinion as a matter of law. Compare Irvin v. Dowd, supra, at 723—728, 81 S.Ct. at 1642—1645, where sensational publicity adverse to the accused permeated the small town in which he ws tried, the voir dire examination indicated that 90% of 370 prospective jurors and two-thirds of those seated on the jury had an opinion as to guilt, and the accused unsuccessfully challenged for cause several persons accepted on the jury. The fact that petitioner did not challenge for cause any of the jurors so selected is strong evidence that he was convinced the jurors were not biased and had not formed any opinions as to his guilt. In addition, we note that while the Washington Supreme Court was divided on the question of the right of an accused to an impartial grand jury, the denial of the petitioner's motions based on the bias and prejudice of the petit jury did not raise a single dissenting voice.
26
"While this Court stands ready to correct violations of constitutional rights, it also holds that 'it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality." United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (1956). This burden has not been met.
27
Affirmed.
28
Mr. Justice FRANKFURTER took no part in the decision of this case.
29
Mr. Justice WHITE took no part in the consideration or decision of this case.
30
Mr. Justice BLACK, with whom The CHIEF JUSTICE concurs, dissenting.
31
I dissent from the Court's holding because I think that the failure of the Washington courts to follow their own state law by taking affirmative action to protect the petitioner Beck from being indicted by a biased and prejudiced grand jury was a denial to him of the equal protection of the laws guaranteed by the Fourteenth Amendment.
32
Since 1854, when Washington was a Territory, that State has had a statute comprehensively governing the use of grand juries in criminal trials which provides in part:
33
'Challenges to individual grand jurors may be made by * * * (any person in custody or held to answer for an offense) for reason of want of qualification to sit as such juror; and when, in the opinion of the court, a state of mind exists in the juror, such as would render him unable to act impartially and without prejudice.'1
34
In State ex rel. Murphy v. Superior Court,2 the Washington Supreme Court held in construing this statute that in order to preserve the right of defendants to fair and impartial grand jurors, Washington State judges must select grand jurors by chance, explaining:
35
'That it was the policy of the legislature to preserve the right to have an unbiased and unprejudiced jury and grand jury and that no suspicion should attach to the manner of its selection in all cases, cannot be questioned.'
36
Some years later in State v. Guthrie3 the Washington Supreme Court held that it was not only within the power of Washington State judges but it was also their duty to insure unbiased grand juries, even if so doing meant changing the composition of the grand juries selected by the rules of chance. That court in this latter case reiterated the statute's policy to preserve impartial grand juries and made it crystal clear that juries biased because of judicial inaction are as offensive to the policy of the Washington statute as juries biased because of deliberate judicial selection:
37
'While this section may be said to relate to challenges made by interested persons, it is not to be construed as denying to the court the right, upon its own motion, to excuse a juror deemed to be disqualified or incompetent. To deny this right would be out of harmony with the policy of the law, which charges the court with the responsibility of insuring that qualified and impartial grand jurors are secured.'
38
That this state policy for impartial grand juries has been generally accepted as the settled law of Washington is demonstrated, not only by the statements of the four judges who voted to reverse this conviction,4 but also by the current practice cited to us of other Washington trial courts.5 Indeed, the presiding judge who impaneled the Beck grand jury made sufficient inquiries to insure that grand jurors would not be biased against the State in its investigation of Beck.
39
The Court, however, finds that the Murphy and Guthrie cases have no relation to the guarantee of a fair and impartial grand jury but are 'concerned only with whether the members of the grand jury had been selected by chance.' But even the State has taken no such position, either before the Washington Supreme Court or here. In its brief before the Washington Supreme Court the State acknowledged that the Washington statute as interpreted by the Murphy and Guthrie cases set out a 'well-recognized rule' that state 'grand juries should be impartial and unprejudiced.'6 And even in this Court the State does not repudiate this acknowledgment but says only that because the Washington Supreme Court was equally divided 'the meaning of Washington statutes in regard to grand juries cannot be determined at this point.' But of course we must decide what the Washington law is in order to pass upon Beck's claim that Washington has denied him the equal protection of the law.
40
The Washington statute as authoritatively interpreted by its Supreme Court in the Murphy and Guthrie cases means not only that defendants are entitled under Washington law to have indictments against them returned by impartial grand jurors but also that Washington State judges are specifically charged with the duty and responsibility of making all inquiries necessary to insure defendants against being tried on indictments returned by prejudiced grand jurors. Neither the legislature nor the State Supreme Court has ever changed that statute or its interpretation. Certainly, the equal division of judges in the Washington Supreme Court which left Beck's conviction standing did not impair the old statute or its previously established interpretation. Even Washington's own counsel tell us that 'since the reasons for the Washington court being equally divided are signed by no more than four judges each, those reason are not a decision of that court,' and 'are of no significance whatsoever as far as the decisional law of the state of Washington is concerned.' Since the legislature has not changed its statute and the Supreme Court of Washington has not changed its interpretation of that statute, the law of Washington remains the same as it was before Beck's conviction was left standing by the equally divided Washington court. And as it was before, it required Washington judges to protect persons from being indicted by prejudiced and biased grand juries. If Beck has been denied that protection without the law's having been changed, than he has been singled out by the State as the sole person to be so treated. Such a singling out would be a classic invidious discrimination and would amount to a denial of equal protection of the law. We must determine, therefore, whether the grand jury that indicted Beck was impaneled in a way that violated the state law.
41
This question is not that which the Court treats as crucial, whether there is proof in the record that some individual grand juror was actually prejudiced against Beck, but rather the quite different question of whether the judge who impaneled the grand jury took the precautions required by the statute and its controlling judicial interpretation to insure a grand jury that would not be tainted by prejudice against Beck. I think that the record in this case shows beyond doubt that the presiding judge failed to do what the state law required him to do—try to keep prejudiced persons off the grand jury. This failure was particularly serious here because of the extraordinary opportunity for prejudgment and prejudice created by the saturation of the Seattle area with publicity hostile and adverse to Beck in the months preceding and during the grand jury hearing.
42
Petitioner Beck is a long-time resident of Seattle, well known to the community as president of the International Brotherhood of Teamsters and as a former president of the Western Conference of Teamsters. Beginning in March 1957, he became the target of a number of extremely serious charges of crime and corruption by the Senate Select Committee on Improper Activities in the Labor or Management Field and its staff. These charges were given unprecedented circulation in the Seattle area.7 On March 22 23, banner headlines proclaimed the Committee's charge that Beck had used $270,000 in Teamsters funds for his own benefit. When Beck appeared before the Committee several days later and refused to answer questions regarding the charges, he again drew headline coverage in the Seattle press: 'BECK TAKES 5TH AMENDMENT.' One television station went so far as to run a 9 3/4-hour telecast of the proceedings. On May 3, the headlines announced the fact that Beck had been indicted for federal tax evasion and that a former mayor of Seattle had received a special appointment to prosecute further charges before a state grand jury. On May 9, 15 and 16, other front-page, page-wide headlines appeared, the last charging that Beck had misused his position of union trust no less than 52 different times. On May 17, a three-column front-page story recounted the fact that Beck had pleaded the Fifth Amendment 60 times to questions from the Senate Committee. And on May 20, the day the grand jury was impaneled, headlines announced Beck's expulsion from his AFL—CIO post on the ground that 'Dave Beck was found 'guilty as charged' by the A.F. of L.C.I.O. executive council,' and that same paper also carried a charge by Senator McClellan that Beck 'has committed many criminal offenses.' All the while radio, television, the national news magazines and the press in lesser front-page and backup stories published charges of a similar nature. This flood of intense public accusation of crime and breach of trust by prominent and highly placed persons, coupled with publicity resulting from Beck's refusal on grounds of possible self-incrimination to answer questions before the Senate Committee as to the charges made, imposed a very heavy duty on the presiding judge under Washington law to protect Beck from a biased and prejudiced grand jury.
43
Far from discharging that duty, however, the judge actually increased the probability that persons biased against Beck would be left on the grand jury. For while he asked a number of questions directed toward excluding from the jury union members who might be sympathetic to Beck, he made no effective effort at all to protect Beck. Thus, he managed to ask almost every juror whether he had any connection with the Teamsters or any affiliated union, whether he knew any of the Teamsters officers, or whether he had ever been a union officer himself. But, despite his knowledge of the widespread prejudice-breeding publicity against Beck, the judge failed to ask a single juror a single question regarding whether he had read about, heard about or discussed the charges against Beck. Moreover, he failed to ask a single juror who actually sat on the jury whether he was prejudiced against Beck or had already made up his mind about the many public charges.8 Indeed as to those jurors the most searching question which even the Court has managed to pull from the record was the sterile query: 'Is there anything about sitting on this grand jury that might embarrass you at all?' Even the most tenuous logic could not equate that search for embarrassment with a search for bias and prejudice. That a search for bias and prejudice would have shown its existence hardly seems questionable, particularly in view of the fact that six months later when the publicity adverse to Beck was, according to the Court, 'neither intensive nor extensive,' 15 of 43 prospective petit jurors subjected to voir dire questioning expressed some degree of bias or prejudice in the case.9
44
After such a restrained effort toward affording Beck the protection of the unbiased grand jury assured by Washington law, it would be expected that the presiding judge would have given careful and detailed instructions to the grand jury in order to dispel any possible prejudice in their minds. Not so here, however. In fact the instructions given not only failed to cure, they made the situation worse. For instead of instructing that the testimony and charges before the Senate Committee were not evidence before the grand jury and that it would be highly improper for the grand jury to consider them at all, the presiding judge called the jury's attention to the charges of theft and embezzlement against Beck before the Committee and told the jury that it was under a duty to determine whether these charges were refuted by an explanation attributed by the press to Beck:
45
'It seems unnecessary to review the recent testimony before a Senate Investigating Committee except to say that disclosures have been made indicating that officers of the Teamsters Union have, through trick and device, embezzled or stolen hundreds of thousands of dollars of the funds of that union money which had come to the union from the dues of its members. * * *
46
'The president of the Teamsters Union has publicly declared that the money he received from the union was a loan which he has repaid. This presents a question of fact, the truth of which is for you to ascertain.' Together with the additional facts set out by Mr. Justice DOUGLAS in his dissent, what I have said above seems clearly to show that the presiding judge took none of the steps, eithe rin interrogation or in instruction, that in the atmosphere of the day would have fulfilled his state statutory duty to insure a grand jury unbiased against Beck.
47
This failure of the judge denies petitioner a protection which Washington has provided to similarly situated defendants over the years and which, so far as now foreseeable, Washington will continue to provide to all Washington defendants in the future. This failure would be cast in a different light if the Washington Legislature had repealed its law or if its Supreme Court had altered its interpretation and set out a general rule abrogating the right to have judges take affirmative action to insure an unbiased grand jury. But without any change in the prior law or any sure indication that Beck's 'law' is the law of the future, the State of Washington in convicting Beck applies special and unfair treatment to him. For only Beck, a single individual out of all the people charged with crime by indictment in Washington, is denied his clearly defined right under the law to have the state judicial system insure his indictment by 'impartial grand jurors.' Through the device of an equally divided vote in the Washington Supreme Court he goes to prison for 15 years. I think that the Equal Protection Clause of the Fourteenth Amendment forbids such an invidious picking out of one individual to bear legal burdens that are not imposed upon others similarly situated.10 I cannot agree with the Court that such a gross discrimination against a single individual with such disastrous consequences can be treated as a mere trial error. For a judicial decision which sends a man to prison by refusing to apply settled law which always has been and so far as appears will continue to be applied to all other defendants similarly situated is far more than a mere misapplication of state law.11 It is a denial of equal protection of the law and a State should no more be allowed to deny a defendant protection of its laws through its judicial branch than through its legislative or executive branch.
48
I think that petitioner was denied equal protection of the law for still another reason. The four Washington judges who voted to affirm the conviction below, and whose views have therefore determined the outcome of Beck's case, agreed that those 'in custody or held (on bail) to answer for an offense,' the '(p)ersons for whose benefit that statute was enacted,' are entitled to grand jurors without bias or prejudice.12 This divides all persons suspected of larceny by embezzlement, as petitioner was, into two classes: (1) those persons in custody or on bail, and (2) those persons who are only under investigation by grand jury. The first class is entitled to have an impartial and unbiased grand jury; the second is not. The four judges who wanted to reverse this conviction could see no reason, nor can I, for saying that one charged with crime and in jail or on bail should be entitled to an unprejudiced grand jury but one who happened not to be already held for grand jury action could validly be indicted by a biased and prejudiced grand jury. So far as the need to be free from prosecution by a prejudiced grand jury is concerned, there can be no rational distinction between the need of the man who is not yet in custody and the need of the man who is in jail or on bail,13 particularly where as here the grand jury was called for the specific purpose of examining into petitioner's activities and was so instructed. No doubt the clearest evidence of the lack of rationality in such a distinction is the fact that for 108 years the State of Washington has itself made no such distinction. For even though the statute on its face applies only to those in custody or on bail, it has always been interpreted to guarantee an impartial grand jury to all.
49
A fair trial under fair procedure is a basic element in our Government. Zealous partisans filled with bias and prejudice have no place among those whom government selects to play important parts in trials designed to lead to fair determinations of guilt or innocence. Whether the due process provisions of the Federal Constitution require, however, that every procedural step in a trial, including the impaneling of a grand jury, be absolutely fair and impartial, I need not determine here. But in considering whether people charged with the same crimes under the same circumstances, subject to the same penalties in the same place may be divided up into classes, some of whom are given the benefit of fair grand jurors and some of whom are not, we must keep in mind the high standard of fair and equal treatment imposed by the Equal Protection Clause of the Fourteenth Amendment, as well as the important part that grand juries play in trial procedures when they are used. For me the need for fair grand juries as between those who have not yet been formally arrested and those who have is too much the same to be treated as though it were different. I would not permit the State of Washington to lay its hands so unequally upon groups whose interests, whose needs and whose dangers are so similar.14
50
Not surprisingly the Court attempts to shrug off both of Beck's equal protection claims without reaching them on the merits. As to his first claim, that he was denied equal protection by the failure of the Washington courts to accord him the benefit of the state law guaranteeing an impartial grand jury, this Court asserts that even if Beck was, unlike everyone else, denied the benefit of a grand jury which had been questioned by the presiding judge to protect against bias, the error was harmless because he presented no proof to show that the grand jury selected in violation of Washington law was actually biased or prejudiced against him. But the Washington law puts the duty on the judge to insure against bias not on the defendant to show bias. The court cites absolutely no authority and I have been unable to find any that when a Washington State judge neglects his duty to assure an impartial grand jury his error is cured by the failure of the defendant to show actual bias on the part of one or more grand jurors. On the contrary, the Washington Supreme Court said in State ex rel. Murphy v. Superior Court:
51
'Granting, for the sake of argument, that no real injustice has been done in this particular case, and that a fair jury was selected, to approve the method adopted by the court would be to permit a judge, if he so willed, to provide a grand jury of his own choosing in every case under color of law.'15
52
Moreover, even if it were possible under Washington law so cavalierly to fritter away important rights of criminal procedure designed to achieve fairness, this record should satisfy the most doubting Thomas that the failure to insure a proper grand jury here was in fact not harmless. While the trial court made no determination as to whether the grand jury was prejudiced against Beck, four of the eight Washington Supreme Court judges who ruled on the question felt that a conclusive showing of prejudice had been made. Judge Donworth, speaking for those four judges, after an exhaustive review of the facts concluded:
53
'I think it would be unrealistic to believe that a very substantial number of the citizens of the community had not adopted, consciously or unconsciously, an attitude of bias and prejudice toward appellant at the time the grand jury was convened. If ever there was a case which required the most stringent observance of every safeguard known to the law to protect a citizen against bias and prejudice, this was it.'16
54
The other four judges did say: 'There is no showing of bias or prejudice,' but gave not the slightest evidentiary or even argumentative support to show the correctness of this offhand statement.17 In these circumstances where there has been no finding by the trial court and where the highest court of the State has divided evenly so that there is no finding there either, our ordinary 'solemn duty to make independent inquiry and determination of the disputed facts'18 upon which the question of denial of equal protection of the law turns becomes particularly pointed. Considering the overwhelming evidence to support the four judges who thought that petitioner had made a showing of prejudice, it seems inconceivable to me that it can fairly be said that no showing of prejudice was made.
55
As to Beck's second claim, that it is a denial of equal protection of the law to afford those in jail or on bail the judicial assurance of an impartial grand jury while denying such protection to those not in jail or on bail like Beck, the Court apparently does not claim that the error was harmless but discovers yet another way to avoid having to pass on the plain merits of his constitutional claim. It concludes on a number of grounds that petitioner's claim was not properly presented to the Washington Supreme Court. I do not think any one of the Court's grounds or all of them together justify its avoidance of determining Beck's constitutional contention on its merits.
56
(a) It is said that this contention was not properly before the State Supreme Court because 'Petitioner's formal attack at the trial court level did not even mention § 10.28.030 * * *.' But Beck did claim that that section had not been complied with both in his 'Challenge to Grand Jury' and in his separate motion to set aside the indictment, both of which are set out in note 3 of the Court's opinion. In fact his challenge to the grand jury was specifically cast in the terms of § 10.28.030. And Beck's reliance on § 10.28.030 and related sections of Washington's grand jury statute was emphasized time and time again by his counsel's arguments to the trial court, both oral and written, on the challenge and on his separate motion to dismiss the indictment. For example, trial counsel said:
57
'* * * (T)he decisions which we have been able to find all indicate the same thing. That is, that the Grand Jury just like the trial jury, must be unbiased and unprejudiced, and indeed in a couple of the decisions they referred to this 10.28.030 in the same manner I have done to indicate the intent of the Legislature.'19
58
(b) The Court says: 'That the prosecution and the court viewed petitioner as outside the scope of § 10.28.030 was brought home to him in the course of the trial court proceedings on his grand jury attack.' I cannot agree that the trial court construed § 10.28.030 as denying Beck the right to an impartial and unprejudiced grand jury or informed him to that effect. While it is true that the State's counsel argued and the trial court agreed that petitioner could not question the method of impaneling the grand jury by a 'Challenge to Grand Jury,' the trial court never even intimated that § 10.28.030 limited its assurance of an impartial and unprejudiced grand jury only to those who were indicted while they were in jail or out on bond. On the contrary, the trial court admitted, even though it ultimately denied petitioner's motion without further comment, that petitioner could attack the grand jury—'incidentally on a motion to set aside that indictment'—precisely the kind of motion the petitioner actually made under § 10.40.070, which motion is set out in note 3 of the Court's opinion.
59
(c) The Court says that the State Supreme Court was not required to pass on petitioner's claim of denial of equal protection because it was not 'definitely pointed out in the 'assignments of error' in appellant's brief,' as required by Rule 43 of the State Rules on Appeal. But as just pointed out the trial court had not construed the statute as denying Beck was was not in custody or on bail the benefit of an impartial grand jury while insuring such a grand jury for defendants who were in custody or on bail. Since the trial court had made no such ruling, Beck could not of course assign as error a ruling that had not been made. He did, however, properly assign errors which, as shown in the Court's note 4, were sufficiently broad to challenge the trial court's failure to comply with state law in insuring an impartial grand jury. That was all that he could do at that time.
60
(d) Another ground for this Court's refusal to rule on Beck's claim is that: 'The Washington Supreme Court has unfailingly refused to consider constitutional attacks upon statutes not made in the trial court * * *.' But even a casual investigation of the opinions of that court shows that it has not 'unfailingly' followed any such practice.20 Moreover, no Washington case or any other has been cited to prove that a question of equal protection of the law must be raised in the trial court even though that court does not itself ever make a ruling which denies equal protection of the law. And I would think that this Court would not tolerate use of such a state device to bar correction of constitutional violations.
61
(e) Finally while I disagree that Beck's claim has not been properly presented to the Washington Supreme Court, I find that wholly immaterial here. For as we said in Raley v. Ohio: 'There can be no question as to the proper presentation of a federal claim when the highest state court passes on it.'21 And here although undoubtedly familiar with the state rule and the state cases dug up here by this Court for the first time to show that Beck's claim was not properly presented, the fact is that the eight judges of the Washington Supreme Court who sat in this case did actually pass on Beck's claim in his brief before them that to take away his right to an impartial grand jury because he was not in custody or on bail would deny him the equal protection of the laws. That claim in Beck's State Supreme Court brief was:
62
'In fact, to permit one who has already been arrested to challenge the mental qualifications of a grand juror, while denying this right to one who has not been arrested, would amount to a denial of equal protection of the law. This is particularly true * * * in the state of Washington * * *.'22
63
In response to Beck's claim Judge Donworth, speaking for the four judges who voted to reverse the conviction, fully agreed with his contention, saying:
64
'I do not understand how it can be said, under the facts shown in this record, that the reason entitling a person in custody or held to answer for an offense to be investigated by an impartial and unprejudiced grand jury, does not apply equally well to appellant. It is axiomatic that all men are equal before the law and are entitled to the same rights under the same or similar circumstances.
65
'Until the legislature amends or repeals the statutory law, * * * it must be applied with equal effect to every person whose conduct is under investigation by a grand jury pursuant to the court's charge to it.'23
66
The other four judges, obviously disagreeing with their brethren and rejecting Beck's equal protection claim, held that 'There was a reason' for the statutory guarantee of an impartial grand jury for one 'in custody or held to answer for an offense,' although denying it to one not in custody or on bail.24
67
(f) The Court also goes so far as to say that Beck's constitutional question was not included among those questions presented which our writ of certiorari was granted to review. I disagree. In the questions presented in the petition for certiorari and in the brief supporting that petition, counsel for Beck repeatedly asserted that in the manner of selecting this grand jury Beck had been denied the equal protection of the law. The core of all these claims is discrimination growing out of the manner of the selection of the grand jury. The particular classification claim which the Court seeks to avoid passing on is also a claimed discrimination with reference to the manner of selection of the grand jury. Since all these contentions are inextricably intertwined, under our decision of last term in Boynton v. Virginia25 I see no more reason for refusing to pass on one than another. That case held a statutory claim of discrimination to have been sufficiently raised where discrimination generally was 'the core of the * * * broad constitutional questions presented.' Moreover, I agree with Mr. Justice DOUGLAS that under Rule 23 which prohibits 'unnecessary detail' and which deems a question presented 'to include every subsidiary question fairly comprised therein' even the most general claim of equal protection would have been sufficient to raise petitioner's claim.
68
The petitioner here, however, has no need to rely on either the Boynton case or on the broad mandate of Rule 23, for his claims are clearly encompassed among the specific questions as to which the writ of certiorari was granted. Two of those questions read in part:
69
'* * * (D)oes a person * * * have a right under the due process and equal protection clauses of the Fourteenth Amendment to have the charges and evidence considered by a grand jury which was fair and impartial or, at least, which was instructed and directed to act fairly and impartially?'
70
'* * * (D)id he (petitioner) have a right under the due process and equal protection clauses of the Fourteenth Amendment to have the grand jury impaneled in a manner which would prevent or at least tend to prevent the selection of biased and prejudiced grand jurors?'
71
Since petitioner's claim is that he was denied equal protection of the law by the failure of the presiding judge to provide the protection, guaranteed to others, of a grand jury impaneled in a manner that would insure against biased and prejudiced grand jurors, it seems inconceivable that this conviction should be sustained on the basis that the claim was not included in the petition for certiorari.
72
The net result of what has taken place in the Washington Supreme Court and here is to leave Beck in this predicament: the State Supreme Court considered his contention, tried to decide it but could not because it was equally divided; this Court on the contrary refuses to decide it at all on the ground that Beck has never raised such a question anywhere. The practical consequence of this predicament is to accept the argument of the State that if Beck's constitutional rights are to be protected he must depend upon 'the Washington legislature and not the United States Supreme Court,'26 For this Court to accept such a consequence seems to me to be an abandonment of its solemn responsibility to protect the constitutional rights of the people.
73
The rules of practice which Congress and this Court have adopted over the course of years to crystallize and define the issues properly before the Court were designed to assist the Court in the fair and impartial administration of justice. I cannot believe that this end has been achieved here.
74
Mr. Justice DOUGLAS, dissenting.
I.
75
Although, according to Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, Washington need not use the grand jury in order to bring criminal charges against persons, it occasionally does use one; and a grand jury was impaneled in this case. It is well settled that when either the Federal Government or a State uses a grand jury, the accused in entitled to those procedures which will insure, so far as possible, that the grand jury selected is fair and impartial.1 That is the reason why the systematic exclusion of Negroes from grand jury service infects the accusatory process. See 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. The same principle was applied in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866, when Mexicans were systematically excluded from duty as grand and petit jurors. The same principle would also apply 'if a law should be passed excluding all naturalized Celtic Irishmen' from grand jury duty. Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664.
76
Racial discrimination is only one aspect of the grand jury problem. As stated in Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 373, 50 L.Ed. 652, '* * * the most valuable function of the grand jury was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.' We emphasized in Hoffman v. United States, 341 U.S. 479, 485, 71 S.Ct. 814, 817, 95 L.Ed. 1118, the importance of 'the continuing necessity that prosecutors and courts alike be 'alert to repress' any abuses of the investigatory power' of the grand jury.2 We recently stated in Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397, that:
77
'The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.' (Italics added.) The Washington Supreme Court, which affirmed this judgment of conviction, did so by an equally divided vote. The four voting for affirmance stated that absent a statutory requirement, 'bias or prejudice' on the part of the grand jury was irrelevant. 56 Wash.2d 474, 480, 349 P.2d 387, 390.
78
The case of Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, is offered as justification for the use of an unfair procedure in bringing this charge against petitioner. We there held that forcibly abducting a person and bringing him into the State did not vitiate a state conviction where the trial was fair and pursuant to constitutional procedural requirements. Here, however, a part of the criminal proceeding is itself infected with unfairness. Whether it was necessary to use the grand jury is immaterial. It was used; and the question is whether it was used unfairly. The case is, therefore, like those where procedures, anterior to the trial, are oppressive. A notorious example is an unlawful arrest or the use of detention by the police to obtain a confession. See, e.g., Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Ward v. Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663. Another example is denial of the right to counsel. As stated in Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158, that right extends to a period anterior to the trial itself 'when consultation, thoroughgoing investigation and preparation' are 'vitally important.' Cf. Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (concurring opinion).
79
Could we possibly sustain a conviction obtained in either a state or federal court where the grand jury that brought the charge was composed of the accused's political enemies? If we did, we would sanction prosecution for private, not public, purposes. Whenever unfairness can be shown to infect any part of a criminal proceeding, we should hold that the requirements of due process are lacking.
80
A dissent in Cassell v. Texas, 339 U.S. 282, 298, 70 S.Ct. 629, 639, 94 L.Ed. 839, said, 'It hardly lies in the mouth of a defendant whom a fairly chosen trial jury has found guilty beyond reasonable doubt, to say that his indictment is attributable to prejudice.' Id., at 302, 70 S.Ct. at 639. But the Court did not agree. Since a grand jury was used to indict, the Court held the grand jury to constitutional requirements. We should do the same here. As we stated in Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559:
81
'It is the state's function, not ours, to assess the evidence against a defendant. But it is our duty as well as the state's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand because the Constitution prohibits the procedure by which it was obtained.'
82
A grand jury serves a high function. As stated in United States v. Wells, D.C., 163 F. 313, 324:
83
'It is a familiar historical fact that the system was devised to prevent harassments growing out of malicious, unfounded, or vexatious accusations. That it serves the purpose of allowing prosecutions to be initiated by the people themselves in no way detracts from the fact that it still stands as a safeguard against arbitrary or oppressive action.'
84
The same view was stated by Mr. Justice Field, sitting as Circuit Justice:
85
'In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen, which required the existence of the grand jury as a protection against oppressive action of the government.
86
Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it come from government or be prompted by partisan passion or private enmity.' Charge to Grand Jury, 30 Fed.Cas. 992, 993, No. 18,255.
87
One who reads this record is left with doubts of the most serious character that the procedure used in the selection of the grand jury was fair in light of the unusual conditions that obtained at the time.
II.
88
Petitioner on March 26 and 27, 1957, appeared before a Senate Committee in Washington, D.C., and during his questioning invoked the Fifth Amendment 150 times.
89
On May 2, 1957, petitioner was indicted in Tacoma by a federal grand jury for income tax evasion.
90
On May 8, 1957, petitioner was recalled to testify before the Senate Committee and during another long interrogation invoked the Fifth Amendment about 60 times.
91
During these hearings the Committee members made various comments concerning petitioner. As Judge Donworth, speaking for himself and three other members of the Supreme Court of Washington, said:
92
'These comments, which were extremely derogatory to appellant, were widely circulated by all news media throughout the United States, and particularly in the Seattle area. In these comments, appellant was characterized as a thief, and it was asserted that he was guilty of fraud and other illegal conduct with respect to his management of the affairs of the teamsters' union as its principal officer in the eleven western states, and later in his position as its international president.
93
'These conclusions and opinions (particularly those expressed by Senator McClellan, the chairman of the committee) were displayed by local newspapers on the front page in prominent headlines. The following are a few of the comments which were referred to in such headlines which appeared in Seattle newspapers:
94
"Teamsters' Cash Kept Going to Beck after He Became Union President, Says Prober.' Seattle Times, March 23, 1957. * * *
95
"Beck Gives 'Black Eye' to Labor, Says Sen. McNamara.' Seattle Times, March 27, 1957.
96
"Senate Probe Lifts Lid on Beck Beer Business—Use of Union Money Related.' Seattle Post-Intelligencer, May 9, 1957.
97
'Substantial portions of the committee proceedings relating to these charges were also reproduced in the course of news broadcasts on local radio and television stations.
98
'The amount, intensity, and derogatory nature of the publicity received by appellant during this period is without precedent in the state of Washington. A Seattle newspaper carried a news item reporting that the switchboard of a local radio station that had broadcast the committee proceedings on the preceding day was jammed with calls, and that the officials of the station characterized the response to the broadcast on the part of the public as 'astounding,' and that such response was greater than that resulting from any other broadcast ever aired by them. The serious accusations made by United States senators in the committee hearings are generally regarded by laymen as being official charges (which appellant had refused to answer), and thus the impression was created among the general public that appellant had been found guilty of a crime.' 56 Wash.2d 474, 510—512, 349 P.2d 387, 408.
99
The grand jury which returned the indictment was convened on May 20, 1957.
100
The effect of the saturation of Seattle with this adverse publicity was summarized by Judge Donworth:
101
'The natural effect of this publicity was that, in the eyes of the average citizen, the character of appellant had been thoroughly discredited in the Seattle area on or before May 20, 1957.' 56 Wash.2d, at 512, 349 P.2d, at 408.
102
The trial court at the time of the selection of the petit jury referred to the publicity the case had received in the papers and over the radio and TV and sought to determine whether any jurors had become prejudiced or biased against the accused. The judge who impaneled the grand jury took no such precautions. He excused three who might have been prejudiced because they were or had been members of petitioner's union or of affiliated unions. He excused one employer who in reply to the question 'Are you conscious of any bias, prejudice or sympathy in this case at all?' said, 'That is pretty hard to answer.' Of the six he excused, two admitted prejudice. Not once did the judge inquire as to the intensive adverse publicity petitioner had received and its likely effect on each juror. He asked two types of questions. The one already noted, whether the juror was conscious of bias, etc., and the other one, 'Is there anything about sitting on this grand jury that might embarrass you at all?' It seems to me that the judge was derelict in failing to ascertain whether the amount of adverse publicity petitioner had received had prejudiced the jurors toward the case about to be presented. Although he made no such inquiry of any juror, he proceeded upon the assumption that the grand jury had full knowledge of the activities of the Senate Committee:
103
'We come now to the purpose of this grand jury and the reasons which the judges of this court thought sufficient to justify the expense to the county, and the inconvenience to and sacrifice by you, which this grand jury session will require.
104
'It seems unnecessary to review the recent testimony before a Senate Investigation Committee except to say that disclosures have been made indicating that officers of the Teamsters Union have, through trick and device, embezzled or stolen hundreds of thousands of dollars of the funds of that union money which had come to the union from the dues of its members. It has been alleged that many of these transactions, through which the money was siphoned out of the union treasury, occurred in King County. Such crimes, if committed, cannot be punished under Federal law, or under any law other than that of the State of Washington, and prosecution must take place in King County. The necessary criminal charges can only be brought in this county upon indictment by the grand jury or information filed by the prosecuting attorney.
105
'The president of the Teamsters Union has publicly declared that the money he received from the union was a loan which he has repaid. This presents a question of fact, the truth of which is for you to ascertain.
106
'You may find that many of the transactions happened more than three years ago; this would raise the question of the statute of limitations, which ordinarily bars a prosecution for larceny after three years. There are some instances, however, where the period is extended. This is a question of law and you should be guided by the advice of the prosecutors on this and similar questions. Your investigation may conceivably result in the adoption of better standards of conduct for union officials.'
107
No admonition was given that radio, television, and newspaper reports were not the gospel. No warning was made that one who invokes the Fifth Amendment does not admit guilt. No admonition was given that the deliberations should be free of bias or prejudice. The question is not whether one who receives large-scale adverse publicity can escape grand jury investigation nor whether the hue and cry attendant on adverse publicity must have died down before the grand jury can make its investigation. This case shows the need to make as sure as is humanly possible that one after whom the mob and public passion are in full pursuit is treated fairly, that the grand jury stands between him and an aroused public, that the judge uses the necessary procedures to insure dispassionate consideration of the charge.
108
The State of Washington uses the grand jury only occasionally, the normal method of accusation being by information. Whether grand jurors in other cases are screened for bias or prejudice does not appear. Yet on the assumption that they are not, Beck's objections should not be in vain. Whether the unfair device is used customarily or only once, it does not comport with the Due Process Clause of the Fourteenth Amendment.
III.
109
I think the Court is correct in rejecting the general equal protection question on the merits. But I do think that a narrow phase of equal protection was raised and should be decided in petitioner's favor.3 It is conceded that if Beck had been 'in custody or held to answer for an offense' he would have been entitled to challenge the grand jurors for prejudice. 56 Wash.2d, at 479, 349 P. 2d, at 390. To grant that class the right to challenge for prejudice and to deny it to those who are merely under investigation is to draw a line not warranted by the requirements of equal protection. I agree with the views of Judge Donworth, with whom Judges Finley, Hunter, and Rosellini concurred:
110
'I do not understand how it can be said, under the facts shown in this record, that the reason entitling a person in custody or held to answer for an offense to be investigated by an impartial and unprejudiced grand jury, does not apply equally well to appellant. It is axiomatic that all men are equal before the law and are entitled to the same rights under the same or similar circumstances.' 56 Wash.2d, at 528, 349 P.2d, at 418.
1
Washington Laws 1909, c. 87.
2
Washington v. Griffith, 52 Wash.2d 721, 328 P.2d 897 (1958), does not detract from this principle. In Griffith the Washington Supreme Court, while recognizing the general rule that constitutional arguments cannot be presented for the first time in the Supreme Court, found an exception to this general rule when the accused in a capital case asserts his court-appointed attorney incompetently conducted his trial. The reasons for such an exception are obvious, and it is just as obvious that such reasons are not applicable to the present case.
3
Petitioner made the following attacks upon the grand jury:
'MOTION TO SET ASIDE AND DISMISS INDICTMENT—Filed October 18, 1957
'Comes Now David D. Beck, also known as Dave Beck, defendant herein, by and through his attorneys of record herein, and respectfuly moves to set aside and dismiss the indictment on the following grounds:
'1. That the grand jurors were not selected, drawn, summoned, impaneled or sworn as prescribed by law.
'2. That unauthorized persons, not required or permitted by law to attend sessions of the grand jury were present before the grand jury during the investigation of the allegations of the indictment.
'3. That persons other than the grand jurors were present before the grand jury during consideration of the matters and things charged in the indictment.
'4. That the proceedings of the grand jury which returned the indictment were conducted in an atmosphere of extreme bias, prejudice and hostility toward this defendant, and that said atmosphere
was in part created by the Prosecuting Attorney and by persons acting or claiming to act upon his behalf; all of which was prejudicial to this defendant and which has denied and will continue to deny him rights guaranteed under the 14th Amendment of the Constitution of the United States, Amendment 10 of the Constitution of the State of Washington, and Article I, § 3 of the Constitution of the State of Washington.
'5. That by reason of extreme bias, prejudice and hostility toward the defendant herein, contributed to in part by the conduct of the Prosecuting Attorney and persons acting or claiming to act upon his behalf, it is and will be impossible for the defendant to secure and obtain a fair and impartial trial in the jurisdiction of this Court, all of which is and will be prejudicial to this defendant and which will constitute a denial of his rights guaranteed under the 14th Amendment of the Constitution of the United States, Amendment 10 of the Constitution of the State of Washington, and Article I, § 3 of the Constitution of the State of Washington.
'6. That the Court erred in its instructions and directions to the Grand Jury to the prejudice of the defendant and in denial of rights guaranteed under the 14th Amendment of the Constitution of the United States, Amendment 10 of the Constitution of the State of Washington, and Article I, § 3 of the Constitution of the State of Washington.
'7. That there were excluded from the Grand Jury persons of defendant's financial, social and business class and occupation, contrary to the 14th Amendment to the Constitution of the United States, and contrary to Article I, § 3 of the Constitution of the State of Washington.
'8. That the defendant herein was required and compelled to give evidence against himself, contrary to the provisions of Article I, § 9 of the Constitution of the State of Washington and the 5th and 14th Amendments of the Constitution of the United States.
'9. That the Grand Jury committed misconduct in violation of RCW 10.28.085 and RCW 10.28.100.
'This motion is based upon all of the files, records, transcripts, exhibits and affidavits herein.'
'CHALLENGE TO GRAND JURY—Filed October 18, 1957
'Comes Now the defendant herein and challenges each and all of the members of the grand jury which returned the indictment herein for the reason and on the grounds that the Court which impaneled said grand jury made no determination as to whether a state of mind existed on the part of any juror such as would render him unable to act impartially and without prejudice.'
4
Petitioner's 29 'assignments of error' included the following:
'6. The lower court erred in denying appellant's motion to set aside and dismiss the indictment.
'7. The lower court erred in denying appellant's challenge to grand jury.
'25. The court denied appellant's rights to a fair and impartial grand jury.' However, when petitioner did attempt to conform to the rule of the Washington Supreme Court by pointing out 'definitely' the errors committed in denying his attacks upon the grand jury, he limited the review to violations of the Due Process Clause as set out below.
'29. The appellant was denied due process of law under the Fourteenth Amendment of the Constitution of the United States of America and under the Tenth Amendment of the Constitution of the State of Washington, as follows:
'a. by denying appellant his right to challenge the grand jury or to dismiss the indictment for bias and prejudice of the grand jury members.
'b. by denying his motions for continuance and change of venue thereby forcing appellant to go to trial in an atmosphere of extreme hostility and prejudice.
'c. by misconduct of the prosecutor
'1. during and after the grand jury proceedings, and
'2. at the trial.
'd. by denying appellant an opportunity to examine or inspect transcripts of proceedings before the grand jury after the State had introduced evidence of particular statements made before the grand jury by cross-examination or secondary evidence.
'e. the means used to accuse and convict appellant were not compatible with reasonable standards of fair play.'
5
There are no reported Washington cases so holding. The two cases on which this claim is predicated, Washington v. Guthrie, 185 Wash. 464, 56 P.2d 160 (1936), and Washington ex rel. Murphy v. Superior Court, 82 Wash. 284, 144 P. 32 (1914), were concerned only with whether the members of the grand jury had been selected by chance as the law requires. Quotations from these cases when read in context clearly have reference only to the desirability of selecting grand jurors by chance. Petitioner in his rehearing petition before the Washington Supreme Court quoted from two unnamed, unreported Washington grand jury proceedings in which some prospective jurors were questioned as to bias. Even if it were clear that all the jurors in those cases were so questioned (which it is not), such isolated, unreviewable instances would not establish that Washington law requires the claimed procedures.
1
Revised Code of Washington § 10.28.030. The bracketed portion is from § 10.28.010, a companion section relating to challenges to the entire grand jury panel. These provisions were §§ 45—46 of the original 1854 Act, Washington Territory Acts, p. 110.
2
82 Wash. 284, 286, 144 P. 32, 32—33.
3
185 Wash. 464, 475, 56 P.2d 160, 164.
4
These four judges were of the opinion that the above-cited statute and cases required this case to be decided on the 'premise that * * * (Beck), as a matter of law, was entitled to an impartial and unprejudiced grand jury,' and that the 'failure of the court to interrogate the jurors for the existence of possible bias and prejudice against the officers of the teamsters' union constituted prejudicial error.' State v. Beck, 56 Wash.2d 474, 519, 520, 349 P.2d 387, 412, 413, 353 P.2d 429. Judge Hunter in a separate opinion stated that the requirement of impartiality 'was announced as essential to a grand jury proceeding by both the legislature and the supreme court of this state, in the statutes and decisions * * *.' 56 Wash.2d, at 537, 349 P.2d, at 423—424.
5
The following were quoted to us as typical voir dire questions asked by presiding judges in the impaneling of two recent grand juries in Washington:
"Q—Would there be anything in your acquaintanceship with Mr. Schuster that would in any way tend to affect your decisions in this Grand Jury investigation?
"A—I don't think so.
"Q—In other words, you wouldn't have any hatred or malice or fear or favor or anything of that nature so far as your deliberating would be concerned in connection with this investigation?
"A—No."
"Q—From what you have heard, and I don't believe you live in a vacuum any more than the rest of us, is there anything you have read or that has been suggested by the court in these proceedings that would suggest to you why you couldn't be fair, impartial and objective in making an examination into law enforcement in this county?
"A—No, sir."
6
The four judges who voted to reverse this conviction below relied in part upon this acknowledgment, saying:
'The state has filed a comprehensive brief consisting of one hundred fifty pages containing the following answer to appellant's argument regarding his right to an impartial and unprejudiced grand jury:
"Appellant asserts that the denial of his motion to set aside the indictment constituted error under our statutes and constitution and the constitution of the United States (App.Br. 35).
"* * * Except for citing the well-recognized rule that grand juries should be impartial and unprejudiced (App.Br. 37), the cases are not otherwise applicable." (Emphasis supplied by the Washington Supreme Court.) Among the cases cited in appellant's state court brief to support his contention that the grand jury was not organized in accordance with state law were Watts v. Washington Territory, 1 Wash.Terr. 409; State ex rel. Murphy v. Superior Court, 82 Wash. 284, 144 P. 32; and State v. Guthrie, 185 Wash. 464, 56 P.2d 160.
7
'The amount, intensity, and derogatory nature of the publicity received by appellant during this period is without precedent in the state of Washington.' 56 Wash.2d, at 511, 349 P.2d, at 408 (opinion of Judge Donworth for the four judges who voted to reverse).
8
No prospective grand juror was asked if he was prejudiced against Beck, and only three were asked if they were conscious of bias or prejudice of any kind. Two of these were excused.
9
Although 52 prospective jurors were admitted to voir dire, nine of these were excused for personal reasons of health or convenience and were not therefore questioned by either counsel.
10
See Atchison, Topeka & Santa Fe R. Co. v. Matthews, 174 U.S. 96, 104—105, 19 S.Ct. 609, 612—613, 43 L.Ed. 909. Cf. McFarland v. American Sugar Refining Co., 241 U.S. 79, 86, 36 S.Ct. 498, 501, 60 L.Ed. 899.
11
Unlike this case, which involves the contention that the failure of the Washington courts to apply their prior settled law as to a single statute denies petitioner Beck the equal protection of the law, Milwaukee Elec. Ry. & Light Co. v. Milwaukee, 252 U.S. 100, 40 S.Ct. 306, 64 L.Ed. 476, involves the question of whether the Wisconsin Supreme Court was inconsistent in its treatment of two different municipal legislative provisions.
12
56 Wash.2d, at 480, 349 P.2d, at 390.
13
Even before the adoption of the Equal Protection Clause of the Fourteenth Amendment, other courts and refused to allow any distinction as to the right to a proper composition of a grand jury under state law between those in jail or on bail and those merely subject to grand jury investigation. Thus in United States v. Blodgett, 30 Fed.Cas. 1157, 1159 (No. 18312), the court said:
'True, he was not arrested and imprisoned on any criminal charge, and now brought hither by order of the court, nor is he under bail or recognizance; but because he is not in any of these constrained positions, is he any the less entitled to a grand jury of his country, legally qualified under its laws? Surely not.'
And in McQuillen v. State, 16 Miss. 587, 597, the Mississippi court said as to a purported distinction between the right of persons in court at the time of indictment to challenge grand jurors for cause and the right of those not in court to challenge such jurors:
'(T)he law works unequally by allowing one class of persons to object to the competency of the grand jury, whilst another class has no such privilege. This cannot be. The law furnishes the same security to all, and the same principle which gives to a prisoner in court the right to challenge, gives to one who is not in court the right to accomplish the same end by plea . . ..' See also Hardin v. State, 22 Ind. 347, 351—352; Crowley v. United States, 194 U.S. 461, 469—470, 24 S.Ct. 731, 734—735, 48 L.Ed. 1075.
14
Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655.
15
82 Wash. 284, 287—288, 144 P. 32, 33.
16
56 Wash.2d, at 512, 349 P.2d, at 408.
17
56 Wash.2d, at 480, 349 P.2d, at 390.
18
Pierre v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 539, 83 L.Ed. 757.
19
The decisions referred to were Watts v. Washington Territory, 1 Wash.Terr. 409; State ex rel. Murphy v. Superior Court, 82 Wash. 284, 144 P. 32; and State v. Guthrie, 185 Wash. 464, 56 P.2d 160.
20
See, e.g., Washington v. Griffith, 52 Wash2d 721, 328 P.2d 897; Lee v. Seattle-First National Bank, 49 Wash.2d 254, 299 P.2d 1066.
21
360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344.
22
I know of no reason why this Court should say that the Washington Supreme Court would not 'search through the brief' 'to find' this contention, for I am not willing to assume that the members of the highest court of Washington did not read the briefs of the parties in this case. I must also take issue with the Court's view that this particular constitutional contention was stated in only one sentence. As I read the briefs before me petitioner took up almost two whole pages in presenting this argument and cites eight cases and other authorities. Moreover, the four State Supreme Court judges who voted to affirm and who had petitioner's brief before them referred to that part of the brief devoted to the 'Grand Jury Proceedings' as 'the longest section of appellant's brief.' 56 Wash.2d, at 475, 349 P.2d, at 387. Since they had to read this section to refer to it in this way and to discuss it, I am at a complete loss to understand the Court's further statement that petitioner's argument on this point was 'considered by the Washington Supreme Court to be an abandonment or waiver of such contention.' I can only consider the abandonment found by this Court to be an ex post facto abandonment as far as the Washington Supreme Court is concerned because as pointed out above that court actually considered and passed on the point.
23
56 Wash.2d, at 528, 530 349 P.2d, at 418, 419. (Emphasis supplied by Judge Donworth.) To suggest, as the Court does, that this discussion involves 'interpretation' of the statute but does not relate to equal protection of the laws is to draw a distinction that simply does not exist. What the four judges who wanted to reverse this conviction said in the plainest words possible was that the interpretation of the statute adopted by the four who voted to affirm is one that is wrong because, among other reasons, it denies equal protection of the law.
24
56 Wash.2d, at 479, 349 P.2d, at 390.
25
364 U.S. 454, 457, 81 S.Ct. 182, 184, 5 L.Ed.2d 206.
26
That argument was fully set out in the State's Opposition to the Petition for certiorari: 'The effect of the Washington court decision in the instant case is that the meaning of Washington statutes in regard to grand juries cannot be determined at this point. It would follow that this determination also is binding on the United States Supreme Court.
'Since there is neither a Federal nor a Washington state Constitutional right to an impartial grand jury, and the Washington Supreme Court cannot determine what the Washington statutes prescribe in that regard, the Washington legislature and not the United States Supreme Court must answer that question.' (Emphasis supplied.)
1
Since petitioner was not represented by counsel at the impaneling of the grand jury, his objection at the return of the indictment was timely. As stated in Crowley v. United States, 194 U.S. 461, 469—470, 24 S.Ct. 731, 734, 48 L.Ed. 1075:
'Some of the cases have gone so far as to hold that an objection to the personal qualifications of grand jurors is not available for the accused unless made before the indictment is returned in court. Such a rule would, in many cases, operate to deny altogether the right of an accused to question the qualifications of those who found the indictment against him; for he may not know, indeed, is not entitled, of right, to know, that his acts are the subject of examination by the grand jury.'
2
See Morse, A Survey of the Grand Jury System, 10 Ore.L.Rev. 217.
3
This is not a case where decision is asked on a question not 'formally presented' by the petition for certiorari, as was true in General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 179, 58 S.Ct. 849, 851, 82 L.Ed. 1273. It appears from the record that the question of equal protection was a 'definite issue' decided by the Washington Supreme Court (Seaboard Air Line R. Co. v. Duvall, 225 U.S. 477, 487, 32 S.Ct. 790, 792, 56 L.Ed. 1171); and in at least two places in the questions presented by the petition for certiorari that decision was challenged for denial of equal protection. This was clearly sufficient, as Rule 23(1)(c), 28 U.S.C.A. in haec verba, discourages detailed amplification of the questions presented:
'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. * * *'
The petition states, inter alia:
'1. Where accusation is by a grand jury indictment, does a person (in this case a member and officer of a labor union who at the time of the grand jury proceedings was the subject of continuous, extensive and intensely prejudicial publicity) have a right under the due process and equal protection clauses of the Fourteenth Amendment to have the charges and evidence considered by a grand jury which was fair and impartial or, at least, which was instructed and directed to act fairly and impartially?
'(a) Where petitioner was a member and officer of a labor union, and where prejudicial and imflammatory charges against him were being widely and intensively disseminated by all news media, did he have a right under the due process and equal protection clauses of the Fourteenth Amendment to have the grand jury impaneled in a manner which would prevent or at least tend to prevent the selection of biased and prejudiced grand jurors?'
This is enough to bring the case within our rule that only the questions 'urged in the petition for certiorari and incidental to their determination will be considered on review.' Rorick v. Devon Syndicate, 307 U.S. 299, 303, 59 S.Ct. 877, 879, 83 L.Ed. 1303.
At least four of the judges below thought that the equal protection point treated in this dissent was an issue. For after referring to the Washington statute which gives those in custody or held to answer for an offense the right to an impartial and unprejudiced grand jury (56 Wash.2d, at 527—528, 349 P.2d, at 417) they stated: 'Until the legislature amends or repeals the statutory law, quoted and emphasized above, it must be applied with equal effect to every person whose conduct is under investigation by a grand jury pursuant to the court's charge to it.' 56 Wash.2d, at 530, 349 P.2d, at 419. That seems to me sufficient to bring this ruling within the statement in Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344, to the effect that 'There can be no question as to the proper presentation of a federal claim when the highest state court passes on it.'
| 01
|
369 U.S. 599
82 S.Ct. 1005
8 L.Ed.2d 137
Maurice A. HUTCHESON, Petitioner,v.UNITED STATES.
No. 46.
Argued Nov. 6, 1961.
Decided May 14, 1962.
Rehearing Denied June 25, 1962.
See 370 U.S. 965, 82 S.Ct. 1576.
Frederick Bernays Wiener, Washington, D.C., for petitioner.
Sol. Gen. Archibald Cox, for respondent.
Mr. Justice HARLAN announced the judgment of the Court and an opinion in which Mr. Justice CLARK and Mr. Justice STEWART join.
1
After a trial without a jury, petitioner was found guilty on all 18 counts of an indictment charging him with having violated 2 U.S.C. § 192, 2 U.S.C.A. § 192,1 by refusing to answer pertinent questions put to him on June 27, 1958, by the Senate Select Committee on Improper Activities in the Labor or Management Field, commonly known as the McClellan Committee. He was sentenced to six months' imprisonment and fined $500. The judgment was affirmed by the Court of Appeals, without opinion. We granted certiorari to consider petitioner's constitutional challenges to his conviction. 365 U.S. 866, 81 S.Ct. 902, 5 L.Ed.2d 858.
2
The McClellan Committee was established by the Senate in 1957
3
'to conduct an investigation and study of the extent to which criminal or other improper practices or activities are, or have been, engaged in in the field of labor-management relations or in groups or organizations of employees or employers to the detriment of the interests of the public, employers or employees, and to determine whether any changes are required in the laws of the United States in order to protect such interests against the occurrence of such practices or activities.' S.Res. 74, 85th Cong., 1st Sess. (1957).2
4
Pursuing an investigation pattern which in 1957 and the forepart of 1958 had disclosed misuse of union funds for the personal benefit of various union officials,3 the Committee on June 4, 1958, began hearings at Washington, D.C., into the affairs of various organizations, including the United Brotherhood of Carpenters and Joiners of America of which the petitioner was president. Initially, the Committee sought to inquire into the personal financial interests of petitioner and other officials of the Carpenters Union in the World Wide Press, a New York publishing house owned by one Maxwell Raddock, which was publisher of the 'Trade Union Courier.' More especially the Committee wished to learn whether union funds had been misused in the publication by the Press of a biography of petitioner's father, entitled 'The Portrait of an American Labor Leader, William L. Hutcheson.' Senator McClellan, Chairman of the Committee, announced that the petitioner and Raddock would both be called to testify.4
5
On June 25 Raddock testified as to the affairs of the 'Trade Union Courier' and the publication of the Hutcheson book.5 On the following day, however, he claimed the Fifth Amendment privilege against self-incrimination with respect to another matter to which the Committee had turned. That matter related to the possible use of union funds or influence to 'fix' a 1957 criminal investigation, conducted in Lake County, Indiana, by a state grand jury, into an alleged scheme to defraud the State of Indiana, in which petitioner and two other officials of the Carpenters Union, O. William Blaier and Frank M. Chapman, were allegedly implicated.
6
The alleged scheme to defraud had been revealed in testimony given before a Subcommittee of the Senate Committee on Public Works during May and June 1957. That testimony had disclosed that in June 1956 the petitioner, Blaier, and Chapman had together bought, in their individual capacities, certain real property in Lake County for $20,000, and had shortly thereafter sold it, at a profit of $78,000, to the State of Indiana for highway construction purposes, pursuant to an agreement whereby a deputy in the Indiana Right-of-Way Department was paid one-fifth of that profit.6 The ensuing grand jury proceeding had been terminated in August 1957 without any indictment having been found, with an announcement by the county prosecutor, Metro Holovachka, that 'jurisdiction' over the matter was lacking in Lake County, and that the entire $78,000 profit had been returned to the State. Thereafter, in February 1958, the petitioner, Blaier, and Chapman were indicted in adjoining Marion County on this transaction.7
7
It is apparent from the questioning of Raddock by the chief counsel for the McClellan Committee that the Committee had information indicating that Raddock, the petitioner, Blaier, and several officials of the Teamsters Union had been involved in a plan whereby Holovachka had been induced to drop the Lake County grand jury investigation, and Committee counsel explained to Raddock that the Committee was interested to learn whether union funds or influence had been used for that purpose.8
8
In addition to Raddock, whose self-incrimination plea with respect to all questions relating to that episode was respected by the Committee, Blaier, and two witnesses connected with an Indiana Local of the Teamsters Union, Michael Sawochka its secretary-treasurer and Joseph P. Sullivan its attorney, were also examined before the Committee on June 26. Sawochka and Sullivan each refused to answer any questions relating to the termination of the Lake County grand jury proceedings, Sawochka basing his refusal on the Fifth Amendment privilege against self-incrimination, and Sullivan invoking the attorney-client privilege insofar as the questions related to any discussions with Sawochka. Both claims were honored by the Committee.
9
Blaier, who was asked no questions regarding the Lake County real estate transaction itself,9 refused to answer the question whether he had made 'any arrangements for Mr. Max Raddock to fix any case for you in Indiana.' He asserted that the question 'relates solely to a personal matter, not pertinent to any activity which this committee is authorized to investigate and * * * it might aid the prosecution in the case in which I am under indictment.' The Committee Chairman, without ruling on the objection, stated that the witness might claim the privilege against self-incrimination. Although Blaier did not thereafter do so, he was never directed by the Committee to answer this question.10
10
The last witness who was examined by the Committee on this phase of its investigation was the petitioner, who was called on June 27. He answered questions concerning the publication by Raddock of the biography of petitioner's father, commissioned by the Carpenters Union at a total expense of $310,000. When the inquiry turned to the subject of the Lake County grand jury investigation, however, petitioner refused to answer any questions. Being under the same indictment as Blaier and represented by the same counsel, petitioner's grounds for refusal were the same as those which had been advanced the day before by Blaier: 'it (the question) relates solely to a personal matter, not pertinent to any activity which this committee is authorized to investigate, and also it relates or might be claimed to relate to or aid the prosecution in the case in which I am under indictment and thus be in denial of due process of law.'11 No claim of the Fifth Amendment privilege against self-incrimination was made at any stage. This objection, upon which the petitioner stood throughout this phase of his interrogation, was overruled by the Committee, and petitioner was directed, and refused to answer, each of the 18 questions constituting the subject matter of the indictment upon which he has been convicted.12
11
The many arguments now made to us in support of reversal are reducible to two constitutional challenges. First, it is contended that questioning petitioner on any matters germane to the state criminal charges then pending against him was offensive to the Due Process Clause of the Fifth Amendment. Second, it is argued that the Committee invaded domains constitutionally reserved to the Executive and the Judiciary, in that its inquiry was simply aimed at petitioner's 'exposure' and served no legislative purpose. For reasons now to be discussed we decide that neither challenge is availing.
I.
12
Due Process.
13
The Committee's interrogation is said to have been fundamentally unfair in two respects: (1) it placed the petitioner in a position where, save for silence, his only choice lay between prejudicing his defense to the state indictment, and committing perjury; and (2) it was a 'pretrial' of the state charges before the Committee. The first of these propositions rests on two premises respecting Indiana law, which we accept for the purposes of the ensuing discussion: admissions of an attempt to 'fix' the grand jury investigation could have been used against petitioner in the state trial as evidence of consciousness of guilt (see, e.g., Davidson v. State, 205 Ind. 564, 569, 187 N.E. 376, 378); a claim of the federal selfincrimination privilege before that Committee could also have been so used, at least to impeach petitioner's testimony had he taken the stand at the state trial (see Crickmore v. State, 213 Ind. 586, 592—593, 12 N.E.2d 266, 269).
14
The contention respecting Indiana's future use of incriminatory answers at once encounters an obstacle in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. Those cases establish that possible self-incrimination under state law is not a ground for refusing to answer questions in a federal inquiry; accordingly, the Fifth Amendment privilege against self-incrimination will not avail one so circumstanced. Manifestly, this constitutional doctrine is no less relevant here either because the petition was actually under, and not merely threatened with, state indictment at the time of his appearance before the Committee, or because of the likelihood that the Committee would have respected, even though not required to do so under existing law, a privilege claim had one been made.
15
Recognizing this obstacle, petitioner asks us to overrule Hale and Murdock, asserting that both decisions rested on misapprehensions as to earlier American and English law.13 But we need not consider those contentions, for petitioner never having claimed the Fifth Amendment privilege before the Committee, this aspect of his due process challenge is not open to him now. This is not a case like Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964, or Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997, where there is doubt whether that privilege was invoked by the witness. 'If,' as was noted in Emspak, 349 U.S. at 195, 75 S.Ct. at 691, 'the witness intelligently and unequivocally waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question.' In this instance, the petitioner, with counsel at his side, unequivocally and repeatedly disclaimed any reliance on the Fifth Amendment privilege.14
16
Petitioner cannot escape the effect of his waiver by arguing, as he does, that his refusals to answer were based on 'due process' grounds, and not upon a claim of 'privilege.' We agree, of course, that a congressional committee's right to inquire is 'subject to' all relevant 'limitations placed by the Constitution on governmental action,' including 'the relevant limitations of the Bill of Rights,' Barenblatt v. United States, 360 U.S. 109, 112, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115; that such limitations go beyond the protection of the self-incrimination clause of the Fifth Amendment, id., 111—112, 79 S.Ct. 1085, and that nonreliance on one such limitation does not preclude reliance on another. But it is surely equally clear that where, as here, the validity of a particular constitutional objection depends in part on the availability of another, both must be adequately raised before the inquiring committee if the former is to be fully preserved for review in this Court.
17
To hold otherwise would enable a witness to toy with a congressional committee in a manner obnoxious to the rule that such committees are entitled to be clearly apprised of the grounds on which a witness asserts a right of refusal to answer. Emspak v. United States, supra, 349 U.S. at 195, 75 S.Ct. at 691; cf. Barenblatt v. United States, supra, 360 U.S. at 123—124, 79 S.Ct. at 1091. The present case indeed furnishes an apt illustration of this. Pursuant to its policy of respecting Fifth Amendment privilege claims with respect to 'state' self-incrimination (even though with Hale and Murdock still on the books it need not have done so), the Committee was at pains to discover whether petitioner's due process objection included a privilege claim. Had he made such a claim, there is little doubt but that the Committee would have honored it. It was only after petitioner's express disclaimer of the privilege that the Committee proceeded to disallow his due process objection. Now to consider that the self-incrimination aspect of petitioner's due process claim is still open to him would in effect require us to say that, despite petitioner's unequivocal disclaimer, the Committee should nonetheless have taken his due process objection as subsuming also a privilege claim.15 We cannot so consider the situation.
18
We also find untenable the contention that possible use in the state trial of a claim of the federal privilege against self-incrimination either excused petitioner from asserting it before the Committee or furnishes independent support for his due process challenge. Whether or not, as is intimated by the Government, but, for obvious reasons, not by the petitioner, the State's use of such a claim directly or for impeachment purposes might be preventable, need not now be considered. For if such a proposition is arguable in the face of Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, and Adamson v. California, 332 U.S. 46, 51, 67 S.Ct. 1672, 1675, 91 L.Ed. 1903, let alone Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Hale v. Henkel, supra, and United States v. Murdock, supra, its consideration should in any event await another day. The appropriate time for that, had the petitioner in this instance claimed the privilege before the Committee, would have been upon review of his state conviction, when we would have known exactly what use, if any, the State had made of the federal claim. To thwart the exercise of legitimate congressional power, on the basis of conjecture that a State may later abuse an individual's reliance upon federally assured rights, would require of us a constitutional adjudication contrary to well-established principles of ripeness and justiciability. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 89—90, 67 S.Ct. 556, 91 L.Ed. 754.
19
There remains for discussion on the due process challenge, the contention that the Committee's inquiry was a 'pretrial' of the state indictment. Insofar as this proposition suggests that the congressional inquiry infected the later state proceedings, the answer to it is found in what we have just said respecting the contention that a claim of self-incrimination before the Committee could have been used in the state proceedings. If the Committee's public hearings rendered petitioner's state trial unfair, such a challenge should not be dealt with at this juncture. The proper time for its consideration would be on review of the state conviction. To determine it now would require us to pass upon the claim in the dark, since we are entirely ignorant of what transpired at the state trial.
20
Nor can it be argued that the mere pendency of the state indictment ipso facto constitutionally closed this avenue of interrogation to the Committee. 'It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits.' Sinclair v. United States, 279 U.S. 263, 295, 49 S.Ct. 268, 272, 73 L.Ed. 692. It would be absurd to suggest that in establishing this committee the Congress was actuated by a purpose to aid state prosecutions, still less that of this particular individual. The pertinency of the observation in Sinclair is not lessened by the circumstance that in this instance the state proceeding involved was criminal, rather than civil. Cf. Delaney v. United States, 1 Cir., 199 F.2d 107, 114.16
II.
21
Exposure.
22
There is also no merit to petitioner's contention that the Committee undertook simply 'to expose' petitioner 'for the sake of exposure,' Watkins v. United States, 354 U.S. 178, 200, 77 S.Ct. 1173, 1185, 1 L.Ed.2d 1273. The origins of the McClellan Committee, and the products of its endeavors, both belie that challenge, and nothing in the record of the present hearings points to a contrary conclusion.
23
It cannot be gainsaid that legislation, whether civil or criminal, in the labor-management field is within the competence of Congress under its power to regulate interstate commerce. The Committee's general legislative recommendations, made at the conclusion of its First Interim Report, S.Rep.No.1417, 85th Cong., 2d Sess. 450—453 (1958), were embodied in two remedial statutes enacted by Congress: the Welfare and Pension Plans Disclosure Act of 1958, 72 Stat. 997, 29 U.S.C.A. § 301 et seq., and the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C.A. § 401 et seq. The enactment of the first of these statutes is attributable primarily to the findings and recommendations of several Subcommittees of the Senate Committee on Labor and Public Welfare, S.Rep.No.1440, 85th Cong., 2d Sess. 2—3 (1958), U.S.Code Cong. and Adm.News 1958, p. 4137. But passage of the bill was stimulated by the information then being gathered at hearings of the McClellan Committee. See 104 Cong.Rec. 7054, 7197—7198, 7233, 7337-7338, 7483, 7509—7510, 7521 (1958).
24
The Labor-Management Reporting and Disclosure Act of 1959 was a direct response to the need for remedial federal legislation disclosed by the testimony before the McClellan Committee. This is made clear not by imprecise inferences drawn from legislative history; the proof is in the statute itself. Section 2(b) of the Act declares it to be a finding of Congress 'from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation.' 73 Stat. 519. The Senate and House Reports lean heavily on findings made by the McClellan Committee to justify particular provisions in the proposed bills. See S.Rep.No.187, 86th Cong., 1st Sess. 2, 6, 9, 10, 13—17 (1959), U.S.Code Cong. and Adm.News 1959, p. 2318; H.R.Rep.No.741, 86th Cong., 1st Sess. 1, 2, 6, 9, 11—13, 76, 83 (1959), U.S.Code Cong. and Adm.News 1959, p. 2424.
25
The resolution which gave birth to this Committee, when considered in light of the fruits of its labors, proves beyond any doubt 'that the committee members * * * (were) serving as the representatives of the parent assembly in collecting information for a legislative purpose.' Watkins v. United States, supra, at 200, 77 S.Ct. at 1186. This is not a case involving an indefinite and fluctuating delegation which permits a legislative committee 'in essence, to define its own authority, to choose the direction and focus of its activities.' Id., at 205, 77 S.Ct. at 1188. This Committee was directed to investigate 'criminal or other improper practices * * * in the field of labor-management relations.' Deciding whether acts that are made criminal by state law ought also to be brought within a federal prohibition, if, as here, the subject is a permissible one for federal regulation, turns entirely on legislative inquiry. And it is this inquiry in which the Senate was engaged when it assigned the fact-finding duty to the Select Committee on Improper Activities in the Labor or Management Field.
26
Moreover, this record is barren of evidence indicating that the Committee, for reasons of its own, undertook to 'expose' this petitioner.
27
First: The transcript discloses a most scrupulous adherence to the announced Committee policy of not asking a witness under state indictment any questions 'on the subject matter involved in the indictment.' Note 9, supra. This particular indictment related solely to activity in which petitioner and others had been engaged in their individual capacities, not on behalf of any labor organization. The Committee's concern was not whether petitioner had in fact defrauded the State of Indiana of $78,000 in concluding a dishonest sale or whether he had personally corrupted a state employee. Its interest, which was entirely within the province entrusted to it by the Senate, was to discover whether and how funds of the Brotherhood of Carpenters or of the Teamsters Union17 had been used in a conspiracy to bribe a state prosecutor to drop charges made against individuals who were also officers of the Brotherhood of Carpenters, and whether the influence of union officials had been exerted to that end. If these suspicions were founded, they would have supported remedial federal legislation for the future, even though they might at the same time have warranted a separate state prosecution for obstruction of justice, or been usable at the trial of the Marion County indictment as evidence of consciousness of guilt. Supra, 369 U.S., pp. 607—608, 82 S.Ct., pp. 1009—1010. But surely a congressional committee which is engaged in a legitimate legislative investigation need not grind to a halt whenever responses to its inquiries might potentially be harmful to a witness in some distinct proceeding, Sinclair v. United States, supra, 279 U.S. at 295, 49 S.Ct. at 272, or when crime or wrongdoing is disclosed, McGrain v. Daugherty, 273 U.S. 135, 179—180, 47 S.Ct. 319, 330, 71 L.Ed. 580.
28
Second: The information sought to be elicited by the Committee was pertinent to the legislative inquiry. The Committee was investigating whether and how union funds had been misused, in the interest of devising a legislative scheme to deal with irregular practices. Because of petitioner's refusal to answer questions, and because of the similar refusal by other witnesses to testify with regard to the Lake County grand jury proceedings, the Committee was not able to learn whether union funds or influence had been used to persuade Holovachka to drop those proceedings.
29
Petitioner contends that the Committee's finding in its Second Interim Report that Raddock had been 'used by Hutcheson as a fixer in an attempt to head-off the indictment of Hutcheson (and others) * * *' shows that his testimony was not needed for any purpose other than to prejudice or embarrass him. But this overlooks the fact that the Committee had been able to obtain no information whatever on the Lake County grand jury proceedings from any of the other witnesses by reason of their refusals to testify on the subject.18 Moreover, it does not lie with this Court to say when a congressional committee should be deemed to have acquired sufficient information for its legislative purposes.
30
Third: The Committee's interrogation was within the express terms of its authorizing resolution. If the Committee was to be at all effective in bringing to Congress' attention certain practices in the labor-management field which should be subject to federal prohibitions, it necessarily had to ask some witnesses questions which, if truthfully answered, might place them in jeopardy of state prosecution. Unless interrogation is met with a valid constitutional objection 'the scope of the power of (congressional) inquiry * * * is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.' Barenblatt v. United States, supra, 360 U.S. at 111, 79 S.Ct. at 1085. And it is not until the question is asked that the interrogator can know whether it will be answered or will be met with some constitutional objection. To deny the Committee the right to ask the question would be to turn an 'option of refusal' into a 'prohibition of inquiry,' 8 Wigmore, Evidence (3d ed.) § 2268, and to limit congressional inquiry to those areas in which there is not the slightest possibility of state prosecution for information that may be divulged. Such a restriction upon congressional investigatory powers should not be countenanced.
31
The three episodes upon which the petitioner relies as evidencing a Committee departure from these legitimate congressional concerns fall far short of sustaining what is sought to be made of them. The first of these is the Committee counsel's statement at the outset of the hearings explaining 'the subject matter being inquired into,' in the course of which he referred to the real estate transaction involved in the Marion County indictment, and explained the Committee's interest in finding out whether union funds or influence had been used in bringing to an end the Lake County grand jury investigation of the matter.19 The propriety of such an inquiry has already been discussed. 369 U.S., pp. 617—618, 82 S.Ct., pp. 1014—1015.
32
The second episode is the Chairman's statement to the effect that all the facts as to the Lake County proceedings had 'not been developed by the committee'; that further 'exposure' of them 'should be made'; and that the Committee stood ready to 'assist and help' Indiana if it chose to interest itself in the matter.20 We can see nothing in this statement, which was made after the Committee's inquiry had ended, beyond a perfectly normal offer on the part of the Chairman to put the Committee transcript at the disposal of the Indiana law enforcement authorities if they wished to avail themselves of it.21
33
The final occurrence is the so-called Committee 'finding' as to petitioner's alleged use of Raddock as a 'fixer' to 'head-off' an indictment by the Lake County grand jury. Whatever the basis for that 'finding' (cf. note 18, supra), we must say that its mere inclusion in an official report to the Senate of the Committee's activities22 furnishes a slender reed indeed for a charge that that Committee was engaged in unconstitutional 'exposure.'
34
In conclusion, it is appropriate to observe that just as the Constitution forbids the Congress to enter fields reserved to the Executive and Judiciary, it imposes on the Judiciary the reciprocal duty of not lightly interfering with Congress' exercise of its legitimate powers. Having scrutinized this case with care, we conclude that the judgment of the Court of Appeals must be affirmed.
35
Affirmed.
36
Mr. Justice BLACK and Mr. Justice FRANKFURTER took no part in the decision of this case.
37
Mr. Justice WHITE took no part in the consideration or decision of this case.
38
Mr. Justice BRENNAN, concurring in the result.
39
I join in the judgment affirming the Court of Appeals, but not in my Brother HARLAN'S opinion.
40
The Select Committee assured petitioner that it would respect his reliance upon his Fifth Amendment privilege against self-incrimination, but petitioner deliberately and explicitly chose not to exercise that privilege. In that circumstance, the case is not one for reconsideration of Hale v. Henkel, 201 U.S., 43, 26 S.Ct. 370, 50 L.Ed. 652, and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. I adhere, however, to my view that in a proper case we should reconsider the holdings of Hale and Murdock that, in a federal proceeding, possible incrimination under state law presents no basis for invoking the Fifth Amendment privilege. See Knapp v. Schweitzer, 357 U.S. 371, 381, 78 S.Ct. 1302, 2 L.Ed.2d 1393 (concurring opinion); see also Cohen v. Hurley, 366 U.S. 117, 154, 81 S.Ct. 954, 974, 6 L.Ed.2d 156 (dissenting opinion).
41
The petitioner's constitutional claims find no support, in my view, in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. That case involved a congressional inquiry into the settlement of a claim against a bankrupt firm. The settlement was said to threaten depletion of the bankrupt estate to the injury of other creditors, including the United States. The Court held that the subject matter was outside legislative cognizance because it was a matter inherently and historically for adjustment by the judicial branch, and because there was no hint of a legislative purpose to be served by the inquiry—'it could result in no valid legislation on the subject to which the inquiry referred.' 103 U.S. at 195.
42
The congressional inquiry before us here is in sharp contrast to that in Kilbourn. The Select Committee was seeking factual material to aid in the drafting and adopting of remedial legislation to curb misuse by union officials of union funds unquestionably a proper legislative purpose. The pending Marion County indictment did not involve misuse of union funds but the alleged bribery of a state official in connection with a sale of land to the State. However, the congressional inquiry and the state prosecution crossed paths when the Committee learned that union funds might have been used in a corrupt attempt to forestall an earlier indictment in another county, Lake, for the same alleged bribery. It seems to me obvious that the Committee's interrogation of the petitioner about the use of union funds to forestall that indictment did not stray beyond the range of the Committee's valid legislative purpose. It may be that, under Indiana law, evidence of the attempt, although not essential, would be admissible at the trial under the Marion County indictment.1 But this hardly converts the Committee's inquiry about the attempt into a legislative rehearsal of the trial of the Marion County indictment, bringing the inquiry within Kilbourn's condemnation of legislative usurpation of judicial functions.
43
When a congressional inquiry and a criminal prosecution cross paths, Congress must accommodate the public interest in legitimate legislative inquiry with the public interest in securing the witness a fair trial. Whether a proper accommodation has been made must be determined from the vantage point of the time of petitioner's appearance before the Committee.
44
Any thought that some of our recent decisions, e.g., 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; Braden v. United States, 365 U.S. 431, weakened the vitality of our holding in Watkins v. United States, 354 U.S. 178, 187, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273, that the congressional power of inquiry is not 'an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress,' is dispelled by today's strong expression of continued adherence to that vital principle. Investigation conducted solely to aggrandize the investigator or punish the investigated, either by publicity or by prosecution, is indefensible—it exceeds the congressional power: exposure for the sake of exposure is not legislative inquiry.
45
"(T)he power to investigate must not be confused with any of the powers of law enforcement * * *.' Quinn v. United States, 349 U.S. 155, 161, 75 S.Ct. 668, 672, 99 L.Ed. 964; see United States v. Icardi, D.C., 140 F.Supp. 383. On the other hand, so long as the subject matter is not in 'an area in which Congress is forbidden to legislate,' Quinn, supra, at 161, 75 S.Ct. at 672, the mere fact that the conduct under inquiry may have some relevance to the subject matter of a pending state indictment cannot absolutely foreclose congressional inquiry. Surely it cannot be said that a fair criminal trial and a full power of inquiry are interests that defy accommodation. The courts, responsible for protecting both these vital interests, will give the closest scrutiny to assure that indeed a legislative purpose was being pursued and that the inquiry was not aimed at aiding the criminal prosecution. Even within the realm of relevant inquiry, there may be situations in which fundamental fairness would demand postponement of inquiry until after an immediately pending trial, or the taking of testimony in executive session—or that the State grant a continuance in the trial. On what is before us now, I think that the facts fail to show that this inquiry was unable to proceed without working a serious likelihood of unfairness. Examining the challenged questioning in the full context of the congressional inquiry and its relevance to legislation in process, leads me to conclude that petitioner was not questioned for exposure's sake.
46
The Select Committee began its hearings in 1957. The Committee engaged from the start in gathering facts which led to the conclusion that legislation requiring labor organizations to report and disclose various matters about their operation was necessary. The Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, resulted. Many features of that statute stem from facts learned by the Select Committee's examination into the affairs of several labor organizations, though the drafting was the work of the Senate Subcommittee on Labor and the House Subcommittee on Labor-Management Relations.2 The Subcommittees and their parent Standing Committees framed the statute after considering the Select Committee's findings. See, e.g., S.Rep.No.1684, 85th Cong., 2d Sess. 1 (1958); S.Rep.No.187, 86th Cong., 1st Sess. 2 (1959), U.S.Code Cong. and Adm. News 1959, p. 2318; H.R.Rep.No.741, 86th Cong., 1st Sess. 1 (1959), U.S.Code Cong. and Adm.News 1959, p. 2424; see also S.Doc.No.10, 86th Cong., 1st Sess. 1 (1959). The bills reported out by those Committees recited that their purpose was '(t)o provide for the reporting and disclosure of certain financial transactions and administrative practices of labor organizations and employers, to prevent abuses in the administration of trusteeships by labor organizations, to provide standards with respect to the election of officers of labor organizations * * *.' The second paragraph of the Preamble to the bills included the following: 'The Congress further finds, from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation. * * *' S. 1555 and H.R. 8342, 86th Cong., 1st Sess. (1959); see also S. 3974, 85th Cong., 2d Sess. (1958).
47
At the opening of the Select Committee's hearings on February 26, 1957, the Chairman, Senator McClellan, noted petitioner's union as one of those that the Committee intended to investigate. Hearings, 2. Although the Committee's hearings during the 16 months before they reached petitioner were very full, they had touched upon the affairs of only a few unions, and petitioner's was only the fourth union inquired into with a particular view toward discovering modes of misusing union funds. See Hearings, at 2581, 3221, 7512, and 11786. Petitioner was subpoenaed on May 20, 1958, to appear before the Committee on June 2; his own appearance was put off to June 27, although testimony of other witnesses was taken commencing on June 4. Three months before he was subpoenaed, the state indictment against him was handed up, on February 18, 1958. He was not tried until November 1960, about 29 months after his appearance before the Committee. At the time he appeared, the questioning was directly relevant to the Committee's efforts to inform itself and Congress and to secure legislation within congressional power to enact, aimed at correcting just such evils as those about which petitioner was questioned. Earlier in June 1958, a labor-management reporting and disclosure bill, the Kennedy-Ives Bill, was reported out by the Senate Committee on Labor and Public Welfare and passed by the Senate, but in August it failed of passage in the House. 104 Cong.Rec. 10657, 11486—11487, 18287 18288. Therefore a bill was reintroduced on January 20, 1959, now known as the Kennedy-Ervin Bill. In introducing it, Senator Kennedy read a letter from ex-Senator Ives which said: '(The bill) is designed to meet the objectives set forth in the report of the Senate Select Committee on Improper Activities in the Labor or Management Field.' 2 N.L.R.B., Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 968. The Senate Subcommittee on Labor then conducted intensive hearings on that and alternative bills.3 In opening those hearings, Senator Kennedy said 'We expect further recommendations from the McClellan committee in its second annual report, and we expect to have the advice of an expert panel on labor law revision which will form the basis of further hearings and another bill later this year.'4 Reliance on the work of the Select Committee was evident and significant in those hearings. Hearings before the House Subcommittee began after the conclusion of the hearings by the Senate Subcommittee, and continued into June.5 Spirited debate over the merits of the proposed legislation continued throughout that session of Congress until enactment as the Act of September 14, 1959, Pub.L. 86—257. Section 2(b) of the declaration of findings, purposes, and policy incorporates the above-quoted findings of the second paragraph of the Kennedy-Ervin Bill. It was not until 14 months after passage that petitioner was tried.
48
The questioning of petitioner comes into focus against this background of an inquiry begun by the Select Committee more than a year before petitioner's indictment and continued by both the Select Committee and the Senate and House Labor Subcommittees well after petitioner's appearance, all aimed at and culminating in legislation. In this light, petitioner's interrogation emerges as but one step in the process of fact-gathering to establish the necessity for and the nature of remedial legislation, and I cannot say that it was an unnecessary step, or that the record supports a conclusion that the Select Committee questioned petitioner to affect his state trial.
49
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.
50
This case highlights the problem of defining constitutional limitations upon congressional committees endowed with compulsory process. And because I firmly believe that continued sanction of investigative powers leading to abridgment of individual rights seriously impairs the intent of the Framers of our Bill of Rights, I dissent from Mr. Justice HARLAN's treatment of the constitutional issue presented here. That issue may be simply stated: Is it a violation of the constitutional guarantee of due process of law for a legislative committee, under the circumstances of this case, to inquire into matters for which the witness is about to be tried under a pending criminal indictment? The petitioner, already indicted and awaiting trial in a state court, was subpoenaed to testify before a congressional committee investigating union activity and union funds. When the questioning led to matters concerning facts upon which the state indictment was based,1 the dilemma the petitioner found facing him was this: if he answered truthfully his answers might aid the pending prosecution;2 if he answered falsely, he could have been prosecuted for perjury;3 and, if he relied on the Fifth Amendment's privilege against self-incrimination, that fact could be admitted against him in the state criminal trial.4 Mr. Justice HARLAN's opinion now holds that petitioner's dilemma had a fourth horn; he may also be sent to jail for refusing to choose imposition of one of these penalties. I believe that neither the Constitution nor our past decisions allow Congress to enlist the aid of the federal courts to do to this man what four members of the Court permit.
51
In 1821 this Court held for the first time in Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242, that although the Constitution did not expressly grant to Congress the power to conduct investigations, such a power, within legislative competence, could be implied because it is inherent in the lawmaking process. This investigative function of Congress is, of course, entirely independent of the judicial branch of the Government in strict separation-of-power terms. However, Congress, no less than other branches of the Government, is bound to safeguard individual liberties protected by the Bill of Rights, and it is the duty of the courts to insure that the specific guarantees of liberty are preserved for witnesses before a legislative body just as they are guarded for the benefit of defendants in a criminal court trial. This duty cannot be performed nor can the judicial conscience be stilled by a kind of hand-washing statement that a legislative committee (in some instances a committee of a single person delegated with full investigative power) may finally determine for the courts, not only the importance and relevancy of a matter under investigation, but also that the committee has the constitutional power to ask the questions it wants to ask at the moment. A full Court decided in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, that the courts must ultimately determine who shall be sent to jail and that only the courts may determine whether questions asked by a committee are within Congress' constitutional power of inquiry.5 And in our more recent cases, '(t)he central theme,' as we stated in Watkins v. United States, 354 U.S. 178, 195, 77 S.Ct. 1173, 1183, 1 L.Ed.2d 1273, has been 'the application of the Bill of Rights as a restraint upon the assertion of governmental power in this form.'6 This includes all provisions of the Bill of Rights—the Due Process Clause of the Fifth Amendment, as well as that Amendment's protection against self-incrimination.
52
Mr. Justice HARLAN's opinion fails to recognize that the essence of petitioner's contention is that largely because of this Court's decisions in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, the interrogation on matters for which he had already been indicted was a violation of due process. Cf. Aiuppa v. United States, 6 Cir., 201 F.2d 287, 300. The duty of courts to safeguard an individual's personal liberty and to protect him from being compelled to answer questions outside the constitutional power of Congress, to which I have referred above, is particularly pertinent when Congress has enlisted the aid of the federal courts to protect itself against contumacious conduct and recalcitrant witnesses. 2 U.S.C. § 192, 2 U.S.C.A. § 192. In fulfilling their responsibilities under this statute the courts may not simply assume that every congressional investigation is constitutionally conducted merely because it is shown that great national interests lie in passing needed legislation.7 To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that no branch of the Government transgresses constitutional limitations. See Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60.
53
Accommodation of the congressional need for particular information with the individual and national interest in assuring dispassionate protection for witnesses against unconstitutional encroachment upon their individual rights has proved to be an arduous task throughout this Nation's history. One principle, however, formulated to keep congressional power of punishment to compel testimony within the very narrowest of limits, seems to have withstood erosion by the passage of time and the ever-increasing complexities in carrying out the legislative function. That principle is that in exercising its power to compel testimony, Congress must utilize '(t)he least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat. 204, 230 231, 5 L.Ed. 242. And, in Kilbourn v. Thompson, supra, decided in 1880, this Court had occasion to emphasize the narrowness of this congressional power. In my opinion, the latter case is more like the instant one than any other in our reports and I believe the principles upon which it was decided call for a reversal of the conviction of petitioner here.8
54
It is important, I believe, to reiterate the basic concept enunciated there: that it is for the courts, and not for Congress, in insuring to all persons the safeguards of the Bill of Rights, to establish the constitutional standards which must be observed before people in this country can legally be sent to prison. The case arose in this manner: While a United States District Court, pursuant to its competent jurisdiction, was administering the estate of the bankrupt firm of Jay Cook & Company, which owed money to the United States Government, the House of Representatives passed a resolution to investigate a settlement made by the trustee. The basis for this action was that the settlement allegedly would be to the disadvantage of creditors, including the Government, and that the courts were powerless to afford adequate relief because of the settlement. Kilbourn was subpoenaed to appear as a witness and to bring records, papers and maps 'pertinent to the question under inquiry.' Kilbourn refused and was convicted by the House of contempt. In holding that the House had exceeded its power, a unanimous Court forcefully announced restrictions upon the congressional power to punish for contempt and, at the same time, made it emphatically clear that those restrictions are equally applicable to the congressional power to compel testimony. Thus, when a committee attempts to exercise an extraordinary and unwarranted assumption of judicial power, this Court must strike it down, just as it has done in a situation in which the power to investigate infringed upon powers of law enforcement agencies. Cf. Quinn v. United States, 349 U.S. 155, 161, 75 S.Ct. 668, 672.
55
When the circumstances of the instant case are compared to those which prompted the Court to void the conviction in Kilbourn, a striking similarity emerges. Indeed, the major difference in the circumstances of the two cases—that is, that this case involves a criminal indictment pending against the witness while Kilbourn involved only a civil suit—would seem to make this case even stronger than Kilbourn. The Court's chief reliance for holding that Congress exceeded its powers in the Kilbourn case was that the transactions into which Congress inquired were pending in a court, that the investigation was one 'judicial in its character, and could only be properly and successfully made by a court of justice'; and, since the inquiry 'related to a matter wherein relief or redress could be had only by a judicial proceeding, * * * that the power attempted to be exercised was one confined by the Constitution to the judicial and not to the legislative department of the government.' Kilbourn v. Thompson, supra, at 192—193. The Court summed up its view of the circumstances that showed an absence of congressional power to ask Kilbourn the questions it did with this statement: 'The matter was still pending in a court, and what right had the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction?'
56
In this case the particular subject of the Committee's inquiry to which the petitioner objected was whether he had in the past been unfaithful to his union in administering its funds. An indictment was then pending against petitioner in a court of competent jurisdiction charging him with using those same funds for an unlawful purpose.9 The congressional committee, just as the House in Kilbourn, had no power to grant the union relief or redress of any kind for that alleged breach of trust by petitioner. So far as Congress was concerned in Kilbourn, the differences between Jay Cook and its creditors were held to be their 'private affair' about which Congress could not compel a witness to answer; thus, a pending civil case was enough to bar inquiries concerning the transactions in that litigation. There is far more reason, it seems to me, to apply that principle to this case where Congress attempts to compel a witness to supply testimony which could be used to help convict him of a crime.
57
In so viewing this matter I do not overlook the argument in Mr. Justice HARLAN'S opinion that this particular testimony was relevant to the congressional investigation of the handling of union funds by their officers in order to help Congress decide if it should enact legislation in this field, and, if so, what kind of legislation it should enact. Conceding that under Anderson and Kilbourn the Committee here had the power to ask general questions along this line, it does not follow that it could make detailed inquiries about the conduct of a witness that related specifically to a crime with which he was already charged and for which he was soon to be tried in a court of competent jurisdiction.10 Not only would it be contrary to the holding in Kilbourn to conclude otherwise, but it is incomprehensible to me how it can be urged that Congress needed the details of how petitioner committed this alleged crime in order to pass general legislation about union funds. It would be hard, indeed, I believe, to make rational proof that to refuse to Congress the power to compel testimony from a witness about a matter for which he is about the be tried criminally, would invade the area of '(t)he least possible power adequate' to enable Congress to legislate about union officers and union funds.
58
In my view, it is not a satisfactory approach to problems involving principles of constitutional dimension to look first to the interests of the Government and, if they loom large in the particular instance, to go no further. The countervailing principles embodied in our Bill of Rights do not demand attention only when the governmental interest lacks compulsion. The Bill of Rights demands much more than that. In judging whether Congress has used '(t) he least possible power adequate to the end proposed,' the courts must assure that any possible infringement on personal rights be minimized. In this determination the courts must consider factors such as the degree of need of the investigating committee for the particular information requested and whether the Committee is able to get the desired information from some evidentiary source other than from a witness presently under criminal indictment on a charge relating to those very facts. The fact that in this case Indiana appears to have had sufficient evidence to secure an indictment against the petitioner is adequate indication that independent sources of information were easily available to the Committee by which it could have obtained the very information it sought here without jeopardizing the constitutional rights of the petitioner by asking him about it. Moreover, it cannot be argued with persuasion that Congress would be met with an insurmountable barrier in gathering needed information if a defendant in a pending criminal trial could not be compelled to answer questions before a legislative committee relevant to that indictment. Congress has shown that it has at its command means for removing any such barrier. See Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608.
59
The process through which the result has been reached in Mr. Justice HARLAN'S opinion seems to be to ignore the very reasons the Bill of Rights was incorporated into our Constitution. Those provisions were adopted as, and are intended to be, restraints upon actions by the Government which trespass upon personal liberties reserved to the individual in our society. If, as I believe, the Constitution has barred the Government from proceeding in a particular instance, despite the conceded validity of its interest in the testimony, the courts are duty bound to stand fast against any impairment of the individual's guaranteed rights. Congress cannot, by imposing upon the courts the responsibility for committing persons to jail for contempt of its committees, expect or require the courts to apply lower standards than are compelled by the Bill of Rights, any more than it could direct the courts to suppress those same rights in judicial proceedings. The Bill of Rights, not Congress, establishes the standards which must be observed before people in this country may legally be sent to jail. A congressional committee has the power to compel testimony to aid it in shaping legislation, but it does not have the power merely to publicize a citizen's shortcomings or to aid a State in convicting him of crime. I consider a procedure which pinions a citizen within a dilemma such as was created by the circumstances of this case, and which goes beyond '(t)he least possible power' adequate to accomplish Congress' constitutionally permissible ends, a direct encroachment upon rights secured by due process of law. To send this man to jail for his refusal to answer questions that, because of the circumstances of this case, are outside the power of a committee to ask is, as Kilbourn v. Thompson held, a plain denial of that process guaranteed by the Fifth Amendment to our Federal Constitution. I would reverse the conviction.
60
Mr. Justice DOUGLAS, dissenting.
61
I agree with the Court that the questions asked petitioner by the Committee were within its competence and were pertinent to the legislative inquiry. I do not think, however, that under the circumstances disclosed, the federal courts should lend a hand in fining him or in sending him off to prison.
62
Four months before these hearings, petitioner had been indicted in an Indiana court for felonies that involved directly or indirectly the matters concerning which the Committee questioned him. If he had refused to answer because of the Self-Incrimination Clause of the Fifth Amendment, his plea would have been admissible in the Indiana prosecution. State v. Schopmeyer, 207 Ind. 538, 542—543, 194 N.E. 144, 146. And by our decisions (see Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903) such a use would not be barred. So, under advice of counsel, petitioner did not refuse to answer on the ground of self-incrimination. Rather, he refused to answer on the ground that the questions might 'aid the prosecution in the case in which I am under indictment and thus be in denial of due process of law.'
63
The power to hold in contempt a witness who refuses to testify before a congressional committee has a dual aspect. First is the power of either the House or the Senate to summon him and order him held in custody until he agrees to testify. This power, though not used in recent years (Watkins v. United States, 354 U.S. 178, 206, 77 S.Ct. 1173, 1188), is of an ancient vintage.1 But the power of either House to imprison the witness expires at the end of the session. As stated in Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242, '* * * although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment or periodical dissolution. It follows, that imprisonment must terminate with that adjournment.'
64
Second is the power of the courts to punish witnesses who are recalcitrant or defiant before a congressional committee or who, when summoned, default. 2 U.S.C. § 192, 2 U.S.C.A. § 192. This law, enacted in 1857, was passed so that 'a greater punishment' than the Congress thought it had the power to impose could be inflicted. Watkins v. United States, supra, 207, n. 45, 77 S.Ct. 1189.
65
We deal here with the second of these powers.
66
The federal courts do not sit as pushbutton mechanisms to fine or imprison those whom Congress refers to the United States Attorney for prosecution.
67
There is, for example, the case where no quorum of the congressional committee is present when the witness is charged with contempt. As said in Christoffel v. United States, 338 U.S. 84, 90, 69 S.Ct. 1447, 1450, 93 L.Ed. 1826, 'This not only seems to us contrary to the rules and practice of the Congress but denies petitioner a fundamental right. That right is that he be convicted of crime only on proof of all the elements of the crime charged against him. A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction.' (Italics supplied.)
68
We held in Slagle v. Ohio, 366 U.S. 259, 265—266, 81 S.Ct. 1076, 6 L.Ed.2d 277, that though a legislative committee acts within bounds, yet the form of questions asked and rulings on objections to them may be so obtuse as to make it violative of due process for courts to punish a refusal to answer.2 Cf. Quinn v. United States, 349 U.S. 155, 167—168, 75 S.Ct. 668.
69
A court will not lend its hand to inflict punishment on a person for contempt of a congressional committee where the proceeding was fundamentally unfair.3 The proceeding was held unfair in Watkins v. United States, supra, because it was far from clear that the questions asked by the Committee were 'pertinent' to the question under inquiry. Id., 204—214, 77 S.Ct. 1187—1193. 'Fundamental fairness,' we said, demands that the witness be informed 'what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.' Id., at 215, 77 S.Ct. at 1193. Vagueness in investigatory inquiries, like vagueness in criminal statutes, may not give a witness the notice that is necessary under our standards of due process. Id., at 208, 77 S.Ct. at 1189.
70
There is, I submit, a fundamental unfairness when we make it impossible for a witness to invoke a privilege which the Constitution grants him, and then send him off to jail when the privilege we withhold would have protected him. The guarantee against self-incrimination would have given petitioner full and complete immunity but for our decisions in cases like Adamson v. California, supra, and Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. Those decisions, however, makes his plea of self-incrimination admissible in the pending prosecution in the Indiana court. When we say that the Self-Incrimination Clause of the Fifth Amendment is not applicable to the States by reason of the Fourteenth Amendment, we turn a federal proceeding into a pretrial of the state prosecution, should the witness invoke his constitutional right. Since he dare not invoke it for fear of going to a state prison, he ends up in a federal prison. The result is to turn the guarantee against self-incrimination into a sham. A witness is whipsawed between state and federal agencies, having no way to escape the federal prison unless he confesses himself into a state prison.
71
We have at times said that this Hobson's choice granted a witness is a product of federalism. Feldman v. United States, 322 U.S. 487, 493, 64 S.Ct. 1082, 1084, 88 L.Ed. 1408, was, indeed, a case where the testimony of a man compelled to testify in a state proceeding sent him to a federal prison. But the result of this line of cases is a needless consequence of federalism, and one that makes the constitutional privilege against self-incrimination a 'phrase without reality.' Cohen v. Hurley, supra, at 132, 81 S.Ct. at 963 (dissenting opinion). Why due process for the State should be different in this respect from due process for the Federal Government is a mystery. We should overrule Adamson v. California, supra, and hold that no admission made by a witness in a federal proceeding nor any refusal to testify can be used against him in a state prosecution. Until we take that course, we cannot in good conscience send a man to a federal prison who goes there solely because we deprived him of a basic constitutional guarantee.
72
What we do today is consistent with our prior decisions in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. Yet the result is unfair. This case, like its forebears, shows why we should rid the books of Adamson v. California, supra, and hold that the privilege against self-incrimination contained in the Fifth Amendment is applicable to the States and to the Federal Government alike.
73
There has never, in my view, been a satisfactory answer to the position of the first Justice Harlan that due process in the Fourteenth Amendment does not mean something different from due process in the Fifth Amendment. See Hurtado v. California, 110 U.S. 516, 541 et seq., 4 S.Ct. 111, 28 L.Ed. 232.
1
'§ 192. Refusal of witness to testify or produce papers.
'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
The original resolution provided that the Committee was to exist until January 31, 1958. Its term was thereafter extended for an additional 26 months by several Senate Resolutions. S.Res. 221, 85th Cong., 2d Sess. (1958); S.Res. 44, 86th Cong., 1st Sess. (1959); S.Res. 249, 86th Cong., 2d Sess. (1960).
3
See S.Rep. No. 1417, 85th Cong., 2d Sess. (1958). See also S.Rep. No. 621, 86th Cong., 1st Sess. (1959); S.Rep. No. 1139, 86th Cong., 2d Sess. (1960). The reports covered 2,032 pages and summarized 46,150 pages of testimony taken during 270 days of hearings at which 1,526 witnesses appeared. S.Rep. No. 1139, pt. 4, 86th Cong., 2d Sess. 868 (1960).
4
The Chairman's full opening statement, which appears at pp. 11785—11786 of the Hearings before the Select Committee on Improper Activities in the Labor or Management Field, pt. 31, 85th Cong., 2d Sess. (1958) (hereinafter Hearings), is as follows:
'The committee will hear witnesses today on the operations of Mr. Maxwell Raddock, owner of the World Wide Press, a large New York printing plant, and publisher of the Trade Union Courier.
'Witnesses will be called to testify as to financial interests and investments in the World Wide Press by labor organizations and certain labor officials and the unorthodox manner in which bonds of the company were issued and handled.
'The committee will also inquire into the propriety of labor officials' having financial interests in Maxwell Raddock's company at the same time that they invested considerable sums of their union's funds in the plant that prints the Trade Union Courier and in subscriptions to that paper.
'The manner in which advertisements were solicited by the Trade Union Courier has been the subject of investigation by the committee staff. The committee is particularly interested in whether solicitors employed by the Trade Union Courier represented it as the organ of the AFLCIO as well as making other false representations.
'Preliminary investigation by the staff has disclosed certain financial transactions of the United Brotherhood of Carpenters which require explanation.
'One of these transactions involves very large expenditures in the publication of a book entitled, 'The Portrait of an American Labor Leader, William L. Hutcheson.'
'Maurice Hutcheson, who is now president of the United Brotherhood of Carpenters, and Mr. Raddock will be questioned about this matter.
'The Chair may say that during the existence of this committee we have had much information and a great deal of testimony regarding the misuse of union funds, regarding personal financial gain and benefit and profit and expenditure of such funds by union officials, and we are still pursuing that aspect of labor-management relations.
'We have also had considerable evidence of collusion between management and union officials where they both profit at the expense of the men who work and pay the dues.
'In this particular instance, there is indication that the union membership have again been imposed upon by transactions that have occurred that we will look into as the evidence unfolds before us.'
5
Hearings, 11932—11995, 12000—12006.
6
Investigation of Highway Right-of-Way Acquisition—State of Indiana, Hearings before a Subcommittee of the Committee on Public Works, U.S. Senate, 85th Cong., 1st Sess. (1957).
7
The Government's brief informs us that petitioner and his two codefendants, Blaier and Chapman, were convicted on the Marion County indictment in November 1960, and that the conviction is now pending on appeal in the Supreme Court of Indiana.
8
Note 17, infra.
9
A copy of the state indictment was accepted for reference, and the Chairman announced that it was a 'rule or policy' of the Committee not to interrogate about matters for which the witness was under pending state indictment. Hearings, 12060.
10
The Committee's chief counsel stated that the question did not relate to the subject matter of the state indictment but 'to steps taken in a later conspiracy to present (prevent?) an indictment in Lake County, Ind.' Hearings, 12074. Blaier's attorney argued that the answer could be used by the prosecution in the Indiana case to prove the continuation of the conspiracy. Whether the question involved the state indictment or not, the Committee's counsel conceded that Blaier might 'not want to answer the questions on the grounds it may tend to incriminate him, but not because he is under indictment or that I am asking questions dealing with the indictment.' The chairman ruled, 'It may be a borderline case. I am unable to determine it at this time. The witness can exercise his privilege.' Hearings, 12074.
11
Hearings, 12115.
12
Count 1: 'Has he (Mr. Raddock) received from the union payment for acts performed in your behalf and for you as an individual?' Count 2: 'Have you, unrelated to this offense charged in the indictment now against you, engaged the services of Mr. Raddock, and have you paid him out of union funds for the performance of those services, to aid and assist you in avoiding or preventing an indictment from being found against you or for being criminally prosecuted for any other offense other than that mentioned in this indictment?' Count 3: 'Did you engage the services of Mr. Raddock and pay him for those services out of union funds, to contact, either directly or indirectly, the county prosecuting attorney, Mr. Holovachka, given name Metro, in Lake County, Gary, Ind.?' Court 4: 'Have you paid Max C. Raddock out of union funds for personal services rendered to you at any time within the past 5 years?' Count 5: 'Have you used union funds to pay Max C. Raddock for any services rendered to you personally, wholly disassociated from any matters out of which the pending criminal charge arose?' Count 6: 'Was he there (in Chicago) on union business for which the union had the responsibility for payment?' Count 7: 'Was Mr. Raddock paid on that trip, the expenses of his paid by union funds while he was on union business?' Count 8: 'You were out in Chicago at the same time?' Count 9: 'Where your expenses on that Chicago trip paid by the union?' Count 10: 'Were you out in Chicago at that time on union business?' Count 11: 'Do you know Mr. James Hoffa?' Count 12: 'Did you make an arrangement with Mr. Hoffa that he was to perform tasks for you in return for your support on the question of his being ousted from the A.F.L.—CIO?' Count 13: 'Isn't it a fact that you telephoned Mr. Hoffa from your hotel in Chicago on August 12, 1957?' Count 14: 'And wasn't that telephone call in fact paid out of union funds, the telephone call that you made to him on August 12?' Count 15: 'Do you also know Mr. Sawochka of the Brotherhood of Teamsters?' Count 16: 'Isn't it a fact that you had Mr. Plymate who is a representative of the brotherhood, telephone, and your secretary telephone, Mr. Sawochka from your room on August 13, 1957?' Count 17: 'And isn't it a fact that that telephone bill and that telephone call was paid out of union funds?' Count 18: 'Did you have any business with local 142 of the Teamsters in Gary, Ind.?'
13
Among other things, petitioner contends that both Hale v. Henkel and United States v. Murdock were founded on a misreading of an earlier decision of this Court, United States v. Saline Bank, 1 Pet. 100, which was delivered by Chief Justice Marshall. It is argued that Saline Bank stands for the proposition that the constitutional privilege against self-incrimination may be invoked in a federal court if the information divulged may aid a state prosecution. It is abundantly clear, however, that Saline Bank stands for no constitutional principle whatever. It was merely a reassertion of the ancient equity rule that a court of equity will not order discovery that may subject a party to criminal prosecution. In fact, the decision was cited in support of that proposition by an esteemed member of the very Court that decided the case. 2 Story, Commentaries on Equity, § 1494, n. 1 (1836).
14
Typical of such disclaimers are the following:
'The CHAIRMAN. I understand, it very clear now, that you are not invoking the fifth amendment privilege?
'Mr. HUTCHESON. That is right, sir, I am not invoking it.
'The CHAIRMAN. You are not exercising that privilege?
'Mr. HUTCHESON. No, sir.
'The CHAIRMAN. You are challenging the question and the jurisdiction of the committee for the reasons you have stated and for those reasons only?
'Mr. HUTCHESON. Yes, sir.
'The CHAIRMAN. All right. We have a clear understanding about that.' Hearings, 12116.
'The CHAIRMAN. And, again, not invoking the privilege of the fifth amendment, you stand only and solely upon the statement you have read?' (See 369 U.S., pp. 605—607, 82 S.Ct. pp. 1008—1009, supra.)
'Mr. HUTCHESON. Yes, sir.
'The CHAIRMAN. And you are not exercising the privilege that, by answering, a truthful answer might tend to incriminate you?
'(Witness conferred with counsel.)
'Mr. HUTCHESON. No. sir.' Hearings, 12117.
Further disclaimers of the same tenor will be found at Hearings, 12119, 12121—12122, and 12124. Petitioner did not explain at the
hearings why he went to such pains to avoid any appearance of invoking the privilege against self-incrimination. However, the following colloquy between petitioner and a member of the Committee sheds some light on his motivation:
'Senator ERVIN. Mr. Chairman, may I ask one or two questions along that line and then I will subside?
'Mr. Hutcheson, you are familiar with the provisions of the AFL—CIO ethical code concerning officers of affiliated unions who invoke the fifth amendment; aren't you?
'Mr. HUTCHESON. Yes, sir.
'Senator ERVIN. In that connection I would like to state that this is my opinion of the law, though it may not be your counsel's. The only reason for recognizing the right that a man may not testify concerning matters involved in an indictment against him arises out of the fact that the indictment is probably the strongest kind of evidence that anything he may say in reference to it may be construed to incriminate him, and that the only reason that a man has a right to refrain from answering matters about an indictment is the fact that what he may say about those matters may tend to incriminate him.
'Therefore, Mr. Hutcheson, don't you realize that what you are doing is that you are seeking to avoid an expressed violation? In other words, you are seeking to get the benefit of the fifth amendment without invoking it so that you will not run the risk of committing an offense against the ethical code of the A.F. of L. CIO?
'(The witness conferred with his counsel.)
'Mr. HUTCHESON, Sir, I have been following the advice of counsel on the grounds outlined by me.
'Senator ERVIN. Well, you are concerned that there shall be no actual or apparent violation on your part of the provisions of the A.F. of L.—CIO code of ethics concerning union officers who invoke the fifth amendment when asked about their official conduct, aren't you?
'Mr. HUTCHESON. Yes, sir.' Hearings, 12124—12125.
15
While the Committee did not press Blaier to answer questions relating to the Lake County grand jury proceedings after he had refused to do so on the same grounds as those advanced by the petitioner, there is nothing to indicate that this resulted from the Committee's understanding that those grounds included a claim of the Fifth Amendment privilege.
16
The suggestion made in dissent that the questions which petitioner refused to answer were 'outside the power of a committee to ask' (369 U.S., p. 638, 82 S.Ct., p. 1025) under the Due Process Clause because they touched on matters then pending in judicial proceedings cannot be accepted for several reasons. First: The reasoning underlying this proposition is that these inquiries constituted a legislative encroachment on the judicial function. But such reasoning can hardly be limited to inquiries that may be germane to existing judicial proceedings; it would surely apply as well to inquiries calling for answers that might be used to the prejudice of the witness in any future judicial
proceeding. If such were the reach of 'due process' it would turn a witness' privilege against self-incrimination into a self-operating restraint on congressional inquiry, see 8 Wigmore, Evidence (3d ed.), § 2268; at page 1016, infra, and would in effect pro tanto obliterate the need for that constitutional protection.
Second: The only decision relied on in support of this broad proposition is Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, which because of its 'loose language' has been severely discredited, e.g., United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 546, 97 L.Ed. 770, and which cannot well be taken to stand for the pervasive principles for which it is presently relied on. (369 U.S., pp. 630, 632—636, 82 S.Ct., pp. 1021—1025.) At most, Kilbourn is authority for the proposition that Congress cannot constitutionally inquire 'into the private affairs of individuals who hold no office under the government' when the investigation 'could result in no valid legislation on the subject to which the inquiry referred.' 103 U.S., at 195, 26 L.Ed. 377. The tangible fruits of the labors of the McClellan Committee (369 U.S., pp. 615—617, 82 S.Ct., pp. 1014—1015, infra) show that such is not the case here.
Third: It hardly seems an impairment of 'individual liberties protected by the Bill of Rights' (369 U.S., p. 630, 82 S.Ct., p. 1021) to limit a witness who makes such a 'due process' objection to the scope of the privilege against self-incrimination granted by the Fifth Amendment. If neither the Due Process Clause of the Fourteenth Amendment prohibits the State from using the witness' answer nor the Self-Incrimination Clause of the Fifth Amendment prohibits the Federal Government from asking the question, it is difficult to understand
how it can be said that the Due Process Clause of the Fifth Amendment prohibits the inquiry because any answer may be used by a State.
Fourth: It should be noted that although this congressional inquiry was related to the subject matter of the state indictment, the questions that were asked of the petitioner did not bear directly on his guilt or innocence of the state charges. Indiana's concern was not with whether union funds or influence had been misused; indeed there is no suggestion that the alleged bribery of the Indiana highway official was consummated with funds other than the personal profits reaped by the petitioner and others from theirunlawful transactions. On the other hand, Congress' concern was whether, on some later date, union funds had been used to stifle criminal proceedings that had been brought against the petitioner personally. How such payments were made, if they were in fact made, would certainly be a consideration in the establishment of a federal reporting and disclosure system for union funds.
Finally, 'the least possible power adequate to the end proposed' phrase in Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (369 U.S., pp. 632, 636, 638, 82 S.Ct., pp. 1022, 1025) scarcely bears upon the issue presented by this case. That expression was used in the Anderson case not in connection with anything having to do with the permissible scope of congressional inquiry, but solely with respect to 'the extent of the punishing power' inherently possessed by the Congress. Id., at 230—231.
17
The Committee had information tending to show that the Teamsters Union, with whose officers petitioner was friendly, purchased for $40,000 some real estate in Gary, Indiana, worth approximately $3,800. The seller in this transaction was a corporation which then proceeded to purchase Holovachka's interest in another failing corporation for an amount substantially in excess of its value. See Second Interim Report of the Select Committee on Improper Activities in the Labor or Management Field, S.Rep.No.621, pt. 2, 86th Cong., 1st Sess. 558—560 (1959).
18
The meagerness of the Committee's finding on this subject stands in marked contrast to its findings on the Hutcheson biography, with respect to which the petitioner and the other witnesses had testified with comparative freedom. Whereas 17 pages of the Second Interim Report are devoted to summarizing the evidence regarding the publication of the biography, only six pages related to the Lake County proceedings. Second Interim Report of the Select Committee on Improper Activities in the Labor or Management Field, S.Rep.No.621, pt. 2, 86th Cong., 1st Sess. 533—550, 554—560 (1959). It is relevant to observe in this regard that ten of the questions with respect to which the petitioner was subsequently indicted related to the possible use of union funds for the purpose of suppressing the Lake County grand jury proceeding. See note 12, Counts 1, 2, 3, 4, 5, 6, 7, 9, 14, 17.
19
In relevant part this statement was:
'We are inquiring into the situation in connection with the presentation before the grand jury in Lake County, Ind.; the intervention by certain union officials into that matter, and the part that was played by Mr. Hutcheson himself, Mr. Sawochka, the secretary-treasurer of local 142 of the Teamsters, and Mr. James Hoffa, the international president of the Teamsters.
'The CHAIRMAN. It there some information that either union funds were used in the course of these transactions or that the influence of official positions of high union officials was used in connection with this alleged illegal operation?
'Mr. KENNEDY. We have information along both lines, Mr. Chairman, not only the influence but also in connection with the expenditure of union funds.
'The CHAIRMAN. That is the interest of this committee in a transaction of this kind or alleged transaction of this kind, to ascertain again whether the funds or dues money of union members is being misappropriated, improperly spent, or whether officials in unions are using their position to intimidate, coerce, or in any way illegally promote transactions where the public interest is involved.
'Mr. Raddock, you have heard a background statement. That is not evidence, but it is information, however, which the committee has, regarding this matter out there. The committee is undertaking to inquire into this in pursuit of the mandate given to it by the resolution creating the committee.' Hearings, 12021.
20
The full statement was:
'The testimony further indicates that certain high officials of both the Teamsters and the Carpenters Union, two of the largest unions in the country, with the help and assistance of Mr. Raddock were involved in a conspiracy to subvert justice in the State of Indiana.
'All the facts regarding this conspiracy undoubtedly have not been developed by the committee.
'Further exposure we believe can and should be made. We will be glad to assist and help law enforcement officials in the State of Indiana if they determine that they would interest themselves in the matter.' Hearings, 12132.
21
At the contempt trial Senator McClellan explained his statement as follows:
'Our legislative function had been performed in seeking information regarding crimes and improper activities. Some evidence had been presented indicating the possibility of a further crime involving this defendant possibly and officers of another large union. It has been our practice to cooperate with state and federal officials where any evidence is developed before us with respect to a crime having been committed. Out legislative purpose is to search out and find if crime has been committed.
'My statement here is to the effect that if the state officials desired to pursue any testimony that we had developed, we would cooperate with them and make the record available to them.'
22
Second Interim Report, S.Rep.No.621, pt. 2, 86th Cong., 1st Sess. 592 (1959).
1
We are informed that the petitioner was convicted under the indictment at a trial held some 29 months after his appearance before the Committee, but we are not informed whether the Committee proceedings were part of the State's proofs or otherwise affected the trial. Clearly, however, any contention as to unfairness in his state trial must abide review of that conviction.
2
The Select Committee's membership throughout included two members of the Senate Subcommittee on Labor, Senators Kennedy and Goldwater, who participated actively in the work of both Committees.
3
Hearings before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, on Labor-Management Reform Legislation, 86th Cong., 1st Sess. (January through March 1959).
4
Id., at 40—41.
5
Hearings before a Joint Subcommittee of the House Committee on Education and Labor, on Labor-Management Reform Legislation, 86th Cong., 1st Sess. (March through June 1959).
1
Mr. Justice HARLAN seems to question the relation of the questions asked by the Committee with the subject matter of the state indictment (see 369 U.S., pp. 617—618, 82 S.Ct., pp. 1014 1015). Of course Congress' concern was whether union funds had been used for an unlawful purpose, whereas the State was concerned with how the funds had been unlawfully used. However, a truthful answer to the question asked by the Committee would a fortiori have answered the State's inquiry if in fact the petitioner had used union funds in violation of state law. As stated by Mr. Justice BRENNAN in his concurring opinion (see 369 U.S., p. 623, 82 S.Ct., p. 1018): '* * * (T)he congressional inquiry and the state prosecution crossed paths when the Committee learned that union funds might have been used in a corrupt attempt to forestall an earlier indictment in another county * * * for the same alleged (offense).'
2
Davidson v. State, 205 Ind. 564, 569, 187 N.E. 376, 378.
3
18 U.S.C. § 1621, 18 U.S.C.A. § 1621.
4
Crickmore v. State, 213 Ind. 586, 592—593, 12 N.E.2d 266, 269; State v. Schopmeyer, 207 Ind. 538, 194 N.E. 144. And, by our decisions, such a use by the state court would not be barred. Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903; Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97.
5
103 U.S. 168, 197, 26 L.Ed. 377;
'If they (the House of Congress) are proceeding in a matter beyond their legitimate cognizance, we are of opinion that this can be shown, and we cannot give our assent to the principle that, by the mere act of asserting a person to be guilty of a contempt, they thereby establish their right to fine and imprison him, beyond the power of any court or any other tribunal whatever to inquire into the grounds on which the order was made. This necessarily grows out of the nature of an authority which can only exist in a limited class of cases, or under special circumstances; otherwise the limitation is unavailing and the power omnipotent.'
6
This principle is not a new or novel one. Again in Kilbourn, the Court made this observation (103 U.S., at 190—191, 26 L.Ed. 377):
'It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether state or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.'
7
'The tendency of modern decisions everywhere is to the doctrine that the jurisdiction of a court or other tribunal to render a judgment affecting individual rights, is always open to inquiry, when the judgment is relied on in any other proceeding.' Kilbourn v. Thompson, supra, 103 U.S. at 197—198, 26 L.Ed. 377. (Emphasis added.)
8
I am certain that it will come as a great surprise to many to learn that Kilbourn has been 'severely discredited,' as stated in Mr. Justice HARLAN'S opinion (369 U.S., p. 614, 82 S.Ct., p. 1013, note 16), and that it no longer
stands to prevent the congressional body of our Government from encroaching upon the exercise of judicial power. The reference to United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 546, 97 L.Ed. 770, where Mr. Justice Frankfurter indicated in a dictum designed to reserve decision upon a suggested limit of Congress' investigative power, that Kilbourn contained 'loose language,' is hardly the method this Court has chosen to overrule or 'discredit' decisions in the past. Indeed, neither have we chosen to do so in footnotes. Moreover, Mr. Justice Frankfurter's reliance in Rumely on McGrain v. Daugherty, 273 U.S. 135, 170—171, 47 S.Ct. 319, 327, 71 L.Ed. 580 and Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, to support his statement that 'substantial inroads' have been made on Kilbourn is rather confusing in light of our recent pronouncement in Watkins v. United States, 354 U.S. 178, 194, 77 S.Ct. 1173, 1183, 1 L.Ed.2d 1273, that: 'In McGrain * * * and Sinclair * * *, the Court applied the precepts of Kilbourn to uphold the authority of the Congress to conduct the challenged investigations.' (Emphasis added.)
Kilbourn has also been cited favorably or without a question of its continued validity in other recent decisions of the Court: e.g., Barenblatt v. United States, 360 U.S. 109, 133, 79 S.Ct. 1081, 1096, 3 L.Ed.2d 1115 (opinion by Harlan, J.); Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (opinion by Frankfurter, J.: 'This Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role. Kilbourn v. Thompson, 103 U.S. 168 (26 L.Ed. 377.)'); Uphaus v. Wyman, 360 U.S. 72, 84, 79 S.Ct. 1040, 1048, 3 L.Ed.2d 1090 (dissenting opinion).
9
Contrary to the implication drawn in Mr. Justice HARLAN'S opinion that the principle to which I would adhere in the instant case would also apply 'to inquiries calling for answers that might be used to the prejudice of the witness in any future judicial proceeding' (369 U.S., p. 613, 82 S.Ct., p. 1013, note 16), it seems obvious that nothing in this opinion gives support to such an inference. In fact, I believe a careful reading of it would make clear that it is specifically because of the pending nature of the state indictment that due process has been violated by this inquiry.
10
The State's delay subsequent to the Committee's investigation in bringing the petitioner to trial seems hardly relevant to our inquiry. The speed with which the State's judicial process moves cannot justify an otherwise unconstitutional exercise of federal legislative power.
1
As stated in Stockdale v. Hansard, (1839) 9 A. & E. 1, 114:
'The privilege of committing for contempt is inherent in every deliberative body invested with authority by the constitution. But, however flagrant the contempt, the House of Commons can only commit till the close of the existing session. Their privilege to commit is not better known than this limitation of it. Though the party should deserve the severist penalties, yet, his offence being committed the day before a prorogation, if the house ordered his imprisonment but for a week, every court in Westminster Hall and every judge of all the courts would be bound to discharge him by habeas corpus.'
2
Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, is not opposed to this view. For there the pending suit was civil, not criminal, and the defense was that the congressional committee had exhausted its power to investigate, id., 290, 49 S.Ct. 270, not that it would violate due process for the federal courts to become implicated in a criminal prosecution.
3
Mr. Justice Frankfurter expressed the idea in his separate opinion in Watkins v. United States, supra:
'By * * * making the federal judiciary the affirmative agency for enforcing the authority that underlies the congressional power to punish for contempt, Congress necessarily brings into play the specific provisions of the Constitution relating to the prosecution of offenses and those implied restrictions under which courts function.' Id., at 216, 77 S.Ct. at 1194.
| 01
|
369 U.S. 736
82 S.Ct. 1107
8 L.Ed.2d 230
NATIONAL LABOR RELATIONS BOARD, Petitioners,v.Benne KATZ et al.
No. 222.
Argued March 22, 1962.
Decided May 21, 1962.
Solicitor General Archibald Cox, for petitioner.
Sidney O. Raphael, New York City, for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
It is a violation of the duty 'to bargain collectively' imposed by § 8(a)(5) of the National Labor Relations Act1 for an employer, without first consulting a union with which it is carrying on bona fide contract negotiations, to institute changes regarding matters which are subjects of mandatory bargaining under § 8(d) and which are in fact under discussion?2 The National Labor Relations Board answered the question affirmatively in this case, in a decision which expressly disclaimed any finding that the totality of the respondents' conduct manifested bad faith in the pending negotiations.3 126 N.L.R.B 288. A divided panel of the Court of Appeals for the Second Circuit denied enforcement of the Board's cease-and-desist order, finding in our decision in National Labor Relations Board v. Insurance Agents' Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454, a broad rule that the statutory duty to bargain cannot be held to be violated, when bargaining is in fact being carried on, without a finding of the respondent's subjective bad faith in negotiating. 2 Cir., 289 F.2d 700.4 The Court of Appeals said:
2
'We are of the opinion that the unilateral acts here complained of, occurring as they did during the negotiating of a collective bargaining agreement, do not per se constitute a refusal to bargain collectively and per se are not violative of § 8(a)(5). While the subject is not generally free from doubt, it is our conclusion that in the posture of this case a necessary requisite of a Section 8(a)(5) violation is a finding that the employer failed to bargain in good faith.' 2 Cir., 289 F.2d, at 702—703.
3
We granted certiorari, 368 U.S. 811, 82 S.Ct. 53, 7 L.Ed.2d 20, in order to consider whether the Board's decision and order were contrary to Insurance Agents. We find nothing in the Board's decision inconsistent with Insurance Agents and hold that the Court of Appeals erred in refusing to enforce the Board's order.
4
The respondents are partners engaged in steel fabricating under the firm name of Williamsburg Steel Products Company. Following a consent election in a unit consisting of all technical employees at the company's plant, the Board, on July 5, 1956, certified as their collective bargaining representative Local 66 of the Architectural and Engineering Guild, American Federation of Technical Engineers, AFL—CIO. The Board simultaneously certified the union as representative of similar units at five other companies which, with the respondent company, were members of the Hollow Metal Door & Buck Association. The certifications related to separate units at the several plants and did not purport to establish a multi-employer bargaining unit.
5
On July 11, 1956, the union sent identical letters to each of the six companies, requesting collective bargaining. Negotiations were invited on either an individual or 'association wide'5 basis, with the reservation that wage rates and increases would have to be discussed with each employer separately. A follow-up letter of July 19, 1956, repeated the request for contract negotiations and enumerated proposed subjects for discussion. Included were merit increases, geneal wage levels and increases, and a sick-leave proposal.
6
The first meeting between the company and the union took place on August 30, 1956. On this occasion, as at the ten other conferences held between October 2, 1956, and May 13, 1957, all six companies were in attendance and represented by the same counsel.6 It is undisputed that the subject of merit increases was raised at the August 30, 1956, meeting although there is an unresolved conflict as to whether an agreement was reached on joint participation by the company and the union in merit reviews, or whether the subject was simply mentioned and put off for discussion at a later date. It is also clear that proposals concerning sick leave were made. Several meetings were held during October and one in November, at which merit raises and sick leave were each discussed on at least two occasions. It appears, however, that little progress was made.
7
On December 5, a meeting was held at the New York State Mediation Board attended by a mediator of that agency, who was at that time mediating a contract negotiation between the union and Aetna Steel Products Corporation, a member of the Association bargaining separately from the others; and a decision was reached to recess the negotiations involved here pending the results of the Aetna negotiation. When the mediator called the next meeting on March 29, 1957, the completed Aetna contract was introduced into the discussion. At a resumption of bargaining on April 4, the company, along with the other employers, offered a three-year agreement with certain initial and prospective automatic wage increases. The offer was rejected. Further meetings with the mediator on April 11, May 1, and May 13, 1957, produced no agreement, and no further meetings were held.
8
Meanwhile, on April 16, 1957, the union had filed the charge upon which the General Counsel's complaint later issued. As amended and amplified at the hearing and construed by the Board, the complaint's charge of unfair labor practices particularly referred to three acts by the company: unilaterally granting numerous merit increases in October 1956 and January 1957; unilaterally announcing a change in sick-leave policy in March 1957; and unilaterally instituting a new system of automatic wage increases during April 1957. As the ensuing litigation has developed, the company has defended against the charges along two fronts: First, it asserts that the unilateral changes occurred after a bargaining impasse had developed through the union's fault in adopting obstructive tactics.7 According to the Board, however, 'the evidence is clear that the Respondent undertook its unilateral actions before negotiations were discontinued in May 1957, or before, as we find on the record, the existence of any possible impasse.' 126 N.L.R.B., at 289—290. There is ample support in the record considered as a whole for this finding of fact, which is consistent with the Examiner's Intermediate Report, 126 N.L.R.B., at 295—296, and which the Court of Appeals did not question.8
9
The second line of defense was that the Board could not hinge a conclusion that § 8(a)(5) had been violated on unilateral actions alone, without making a finding of the employer's subjective bad faith at the bargaining table; and that the unilateral actions were merely evidence relevant to the issue of subjective good faith. This argument prevailed in the Court of Appeals which remanded the cases to the Board saying:
10
'Although we might * * * be justified in denying enforcement without remand, * * * since the Board's finding of an unfair labor practice impliedly proceeds from an erroneous view that specific unilateral acts, regardless of bad faith, may constitute violations of § 8(a)(5), the case should be remanded to the Board in order that it may have an opportunity to take additional evidence, and make such findings as may be warranted by the record.' 2 Cir., 289 F.2d, at 709.9
11
The duty 'to bargain collectively' enjoined by § 8(a)(5) is defined by § 8(d) as the duty to 'meet * * * and confer in good faith with respect to wages, hours, and other terms and conditions of employment.' Clearly, the duty thus defined may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused even to negotiate in fact—'to meet * * * and confer'—about any of the mandatory subjects.10 A refusal to negotiate in fact as to any subject which is within § 8(d), and about which the union seeks to negotiate, violates § 8(a)(5) though the employer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in all good faith bargains to that end. We hold that an employer's unilateral change in conditions of employment under negotiation is similarly a violation of § 8(a) (5), for it is a circumvention of the duty to negotiate which frustrates the objectives of § 8(a)(5) much as does a flat refusal.11
12
The unilateral actions of the respondent illustrate the policy and practical considerations which support our conclusion.
13
We consider first the matter of sick leave. A sick-leave plan had been in effect since May 1956, under which employees were allowed ten paid sick-leave days annually and could accumulate half the unused days, or up to five days each year. Changes in the plan were sought and proposals and counterproposals had come up at three bargaining conferences. In March 1957, the company, without first notifying or consulting the union, announced changes in the plan, which reduced from ten to five the number of paid sick-leave days per year, but allowed accumulation of twice the unused days, thus increasing to ten the number of days which might be carried over. This action plainly frustrated the statutory objective of establishing working conditions through bargaining. Some employees might view the change to be a diminution of benefits. Others, more interested in accumulating sick-leave days, might regard the change as an improvement. If one view or the other clearly prevailed among the employees, the unilateral action might well mean that the employer had either uselessly dissipated trading material or aggravated the sick-leave issue. On the other hand, if the employees were more evenly divided on the merits of the company's changes, the union negotiators, beset by conflicting factions, might be led to adopt a protective vagueness on the issue of sick leave, which also would inhibit the useful discussion contemplated by Congress in imposing the specific obligation to bargain collectively.
14
Other considerations appear from consideration of the respondents' unilateral action in increasing wages. At the April 4, 1957, meeting the employers offered, and the union rejected, a three-year contract with an immediate across-the-board increase of $7.50 per week, to be followed at the end of the first year and again at the end of the second by further increases of $5 for employees earning less than $90 at those times. Shortly thereafter, without having advised or consulted with the union, the company announced a new system of automatic wage increases whereby there would be an increase of $5 every three months up to $74.99 per week; an increase of $5 every six months between $75 and $90 per week; and a merit review every six months for employees earning over $90 per week. It is clear at a glance that the automatic wage increase system which was instituted unilaterally was considerably more generous than that which had shortly theretofore been offered to and rejected by the union. Such action conclusively manifested bad faith in the negotiations. National Labor Relations Board v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320, and so would have violated § 8(a)(5) even on the Court of Appeals' interpretation, though no additional evidence of bad faith appeared. An employer is not required to lead with his best offer; he is free to bargain. But even after an impasse is reached he has no license to grant wage increases greater than any he has ever offered the union at the bargaining table, for such action is necessarily inconsistent with a sincere desire to conclude an agreement with the union.12
15
The respondents' third unilateral action related to merit increases, which are also a subject of mandatory bargaining. National Labor Relations Board v. J. H. Allison & Co., 6 Cir., 165 F.2d 766. The matter of merit increases had been raised at three of the conferences during 1956 but no final understanding had been reached. In January 1957, the company, without notice to the union, granted merit increases to 20 employees out of the approximately 50 in the unit, the increases ranging between $2 and $10.13 This action too must be viewed as tantamount to an outright refusal to negotiate on that subject, and therefore as a violation of § 8(a)(5), unless the fact that the January raises were in line with the company's long-standing practice of granting quarterly or semiannual merit reviews—in effect, were a mere continuation of the status quo—differentiates them from the wage increases and the changes in the sick-leave plan. We do not think it does. Whatever might be the case as to so-called 'merit raises' which are in fact simply automatic increases to which the employer has already committed himself, the raises here in question were in no sense automatic, but were infromed by a large measure of discretion. There simply is no way in such case for a union to know whether or not there has been a substantial departure from past practice, and therefore the union may properly insist that the company negotiate as to the procedures and criteria for determining such increases.14
16
It is apparent from what we have said why we see nothing in Insurance Agents contrary to the Board's decision. The union in that case had not in any way whatever foreclosed discussion of any issue, by unilateral actions or otherwise.15 The conduct complained of consisted of partial-strike tactics designed to put pressure on the employer to come to terms with the union negotiators. We held that Congress had not, in § 8(b)(3), the counterpart of § 8(a)(5), empowered the Board to pass judgment on the legitimacy of any particular economic weapon used in support of genuine negotiations. But the Board is authorized to order the cessation of behavior which is in effect a refusal to engotiate, or which directly obstructs or inhibits the actual process of discussion, or which reflects a cast of mind against reaching agreement. Unilateral action by an employer without prior discussion with the union does amount to a refusal to negotiate about the affected conditions of employment under negotiation, and must of necessity obstruct bargaining, contrary to the congressional policy. It will often disclose an unwillingness to agree with the union. It will rarely be justified by any reason of substance. It follows that the Board may hold such unilateral action to be an unfair labor practice in violation of § 8(a)(5), without also finding the employer guilty of over-all subjective bad faith. While we do not foreclose the possibility that there might be circumstances which the Board could or should accept as excusing or justifying unilateral action, no such case is presented here.16
17
The judgment of the Court of Appeals is reversed and the case is remanded with direction to the court to enforce the Board's order. It is so ordered.
18
Reversed and remanded.
19
Mr. Justice FRANKFURTER took no part in the decision of this case.
20
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
National Labor Relations Act § 8(a)(5), 49 Stat. 452, 453, as amended, 29 U.S.C. § 158(a)(5), 29 U.S.C.A. § 158(a)(5):
'It shall be an unfair labor practice for an employer * * * to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.'
2
National Labor Relations Act § 8(d), added by 61 Stat. 142, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d):
'For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment * * *.' See National Labor Relations Board v. Wooster Borg-Warner Corp., 356 U.S. 342, 348—349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823.
3
For earlier Board decisions in accord, see, e.g., Chambers Mfg. Corp., 124 N.L.R.B. 721; Bonham Cotton Mills, Inc., 121 N.L.R.B. 1235, 1236.
The Board's order herein, in pertinent part, ordered that the respondents
'1. Cease and desist from:
'(a) Unilaterally changing wages, rates of pay, or sick leave, or granting merit increases, or in any similar or related manner refusing to bargain collectively with Architectural and Engineering Guild, Local 66, American Federation of Technical Engineers, AFL-CIO * * *.
'(b) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with the Union * * *.'
4
Accord: Labor Board v. Cascade Employers Assn., Inc., 296 F.2d 42 (C.A.9th Cir.).
5
By their references to 'association wide bargaining' the parties appear to mean negotiations at which the six members of the Association for whose employees the union had received certifications on July 5, 1956, would be concurrently represented.
6
On one occasion in November 1956, a representative of the company conferred individually with the union about job classifications.
7
Particularizations of this charge are that the union adamantly insisted that the employers agree to a contract identical with that entered into by Aetna because the Aetna agreement contained a 'most favored nation' clause; that the union evasively vacillated between insistence on individual and group negotiations; and that the conduct of negotiations by the union created unrest impairing the efficiency of the company's operations and causing valued employees to quit.
The Board found as a fact that the introduction of the Aetna agreement did not create any impasse at least until after the unilateral actions here in issue. The Board adopted the Examiner's finding that the company and not the union was responsible for any confusion over individual as opposed to association-wide bargaining. The unrest seems to have been a concomitant of the assertion by the employees of their rights to organize and negotiate a collective agreement, and could not justify a refusal of the company to bargain, at least in the absence of conduct of the union which amounted to an unfair labor practice.
The Examiner rejected the company's offer to prove union-instigated slowdowns. But such proof would not have justified the company's refusal to bargain. Since, as we held in National Labor Relations Board v. Insurance Agents' Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454, the Board may not brand partial strike activity as illegitimate and forbid its use in support of bargaining, an employer cannot be free to refuse to negotiate when the union resorts to such tactics. Engaging in partial strikes is not inherently inconsistent with a continued willingess to negotiate; and as long as there is such willingness and no impasse has developed, the employer's obligation continues.
8
See Universal Camera Corp. v. Labor Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.
9
The Board had also found the company's actions violative of § 8(a)(1), 49 Stat. 452, as amended, 29 U.S.C. § 158(a)(1), but the Court of Appeals held that those findings were merely derivative of the Board's conclusions regarding § 8(a)(5) and so rejected them. We need not consider this question because the Board's order presents no separate issue as to § 8(a)(1). It requires the company to cease and desist from refusing to bargain collectively, and to bargain collectively on request. It imposes no broader obligation either in the language of, or by reference to, § 8(a)(1).
10
See, e.g., National Labor Relations Board v. J. H. Allison & Co., 6 Cir., 165 F.2d 766.
11
Compare Medo Photo Supply Corp. v. National Labor Relations Board, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007; May Department Stores v. National Labor Relations Board, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145; National Labor Relations Board v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320.
In Medo, the Court held that the employer interfered with his employees' right to bargain collectively through a chosen representative, in violation of § 8(1), 49 Stat. 452 (now § 8(a)(1)), when it treated directly with employees and granted them a wage increase in return for their promise to repudiate the union they had designated as their representative. It further held that the employer violated the statutory duty to bargain when he refused to negotiate with the union after the employees had carried out their promise.
May held that the employer violated § 8(1) when, after having unequivocally refused to bargain with a certified union on the ground that the unit was inappropriate, it announced that it had applied to the War Labor Board for permission to grant a wage increase to all its employees except those whose wages had been fixed by 'closed shop agreements.'
'Crompton-Highland Mills sustained the Board's conclusion that the employer's unilateral grant of a wage increase substantially greater than any it had offered to the union during negotiations which had ended in impasse clearly manifested bad faith and violated the employer's duty to bargain.
12
Of course, there is no resemblance between this situation and one wherein an employer, after notice and consultation, 'unilaterally' institutes a wage increase identical with one which the union has rejected as too low. See National Labor Relations Board v. Bradley Washfountain Co., 7 Cir., 192 F.2d 144, 150—152; National Labor Relations Board v. Landis Tool Co., 3 Cir., 193 F.2d 279.
13
The Board also concluded that the company had violated § 8(a)(5) by granting 34 merit increases in October 1956. However, it appears from a stipulation in the record and from the Board's reply brief that the latter increases occurred on October 1, 1956, while the charge on which the instant complaint issued was not filed until April 16, 1957, more than six months thereafter. Section 10(b) of the Act, as amended, 61 Stat. 146, 29 U.S.C. § 160(b), 29 U.S.C.A. § 160(b), provides that 'no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board * * *.' Therefore, we disregard the October 1956 increases as independently constituting an unfair labor practice. Nor do we find it necessary to decide whether they may be considered as evidence in connection with the Board's suggestion that the merit increases of October 1956 and January 1957 should be viewed as together amounting to a general wage increase.
14
See Armstrong Cork Co. v. National Labor Relations Board, 5 Cir., 211 F.2d 843, 847; National Labor Relations Board v. Dealers Engine Rebuilders, Inc., 8 Cir., 199 F.2d 249. Compare the isolated individual wage adjustments held not to be unfair labor practices in National Labor Relations Board v. Superior Fireproof Door & Sash Co., 2 Cir., 289 F.2d 713, 720, and White v. National Labor Relations Board, 5 Cir., 255 F.2d 564, 565.
15
The Court expressly left open the question which would be raised by a union's attempt to impose new working conditions unilaterally. 361 U.S., at 496—497, n. 28, 80 S.Ct. at 430, 431.
16
The company urges that, because of the lapse of time between the occurrence of the unfair labor practices and the Board's final decision and order, and because the union was repudiated by the employees subsequently to the events recounted in this opinion, enforcement should be either denied altogether or conditioned on the holding of a new election to determine whether the union is still the employees' choice as a bargaining representative. The argument has no merit. Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020; National Labor Relations Board v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380; National Labor Relations Board v. Mexia Textile Mills, Inc., 339 U.S. 563, 568, 70 S.Ct. 826, 829, 833, 94 L.Ed. 1067. Inordinate delay in any case is regrettable, but Congress has introduced no time limitation into the Act except that in § 10(b).
| 67
|
369 U.S. 749
82 S.Ct. 1038
8 L.Ed.2d 240
Norton Anthony RUSSELL, Petitioner,v.UNITED STATES. Robert SHELTON, Petitioner, v. UNITED STATES. Alden WHITMAN, Petitioner, v. UNITED STATES. Herman LIVERIGHT, Petitioner, v. UNITED STATES. William A. PRICE, Petitioner, v. UNITED STATES. John T. GOJACK, Petitioner, v. UNITED STATES.
Nos. 8—12, 128.
Argued Dec. 6, 7, 11 and 12, 1961.
Decided May 21, 1962.
No. 8:
[Syllabus from pages 749-750 intentionally omitted]
Joseph A. Fanelli, Washington, D.C., for petitioner.
Kevin T. Maroney, Washington, D.C., for respondent.
No. 9:
Joseph L. Rauh, Jr., Washington, D.C., for petitioner.
Bruce J. Terris, Washington, D.C., for respondent.
No. 10:
Gerhard P. Van Arkel, Washington, D.C., for petitioner.
J. William Doolittle, Jr., Washington, D.C., for respondent.
No. 11: Harry I. Rand, Washington, D.C., for petitioner.
J. William Doolittle, Jr., Washington, D.C., for respondent.
No. 12:
Leonard B. Boudin, New York City, for petitioner.
J. William Doolittle, Jr., Washington, D.C., for respondent.
No. 128:
Frank J. Donner, New York City, for petitioner.
Kevin T. Maroney, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In these six cases we review judgments of the Court of Appeals for the District of Columbia,1 which affirmed convictions obtained in the District Court under 2 U.S.C. § 192, 2 U.S.C.A. s 192.2 Each of the petitioners was convicted for refusing to answer certain questions when summoned before a congressional subcommittee.3 The cases were separately briefed and argued here, and many issues were presented. We decide each case upon a single ground common to all, and we therefore reach no other questions.
2
In each case the indictment returned by the grand jury failed to identify the subject under congressional subcommittee inquiry at the time the witness was interrogated. The indictments were practically identical in this respect, stating only that the questions to which answers were refused 'were pertinent to the question then under inquiry' by the subcommittee.4 In each case a motion was filed to quash the indictment before trial upon the ground that the indictment failed to state the subject under investigation at the time of the subcommittee's interrogation of the defendant.5 In each case the motion was denied. In each case the issue thus raised was preserved on appeal, in the petition for writ of certiorari, and in brief and argument here.
3
Congress has expressly provided that no one can be prosecuted under 2 U.S.C. § 192, 2 U.S.C.A. § 192 except upon indictment by a grand jury.6 This Court has never decided whether the indictment must identify the subject which was under inquiry at the time of the defendant's alleged default or refusal to answer.7 For the reasons that follow, we hold that the indictment must contain such an averment, and we accordingly reverse the judgments before us.
4
In enacting the criminal statute under which these petitioners were convicted Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct. Watkins v. United States, 354 U.S. 178, 207, 77 S.Ct. 1173, 1189, 1 L.Ed.2d 1273. The obvious consequence, as the Court has repeatedly emphasized, was to confer upon the federal courts the duty to accord a person prosecuted for this statutory offense every safeguard which the law accords in all other federal criminal cases. Sinclair v. United States, 279 U.S. 263, 296—297, 49 S.Ct. 268, 272—273, 73 L.Ed. 692; Watkins v. United States, supra, 354 U.S. at 208, 77 S.Ct. at 1189; Sacher v. United States, 356 U.S. 576, 577, 78 S.Ct. 842, 843, 2 L.Ed.2d 987; Flaxer v. United States, 358 U.S. 147, 151, 79 S.Ct. 191, 193, 3 L.Ed.2d 183; Deutch v. United States, 367 U.S. 456, 471, 81 S.Ct. 1587, 1595, 6 L.Ed.2d 963.
5
Recognizing this elementary concept, the Sinclair case established several propositions which provide a relevant starting point here. First, there can be criminality under the statute only if the question which the witness refused to answer pertained to a subject then under investigation by the congressional body which summoned him. '(A) witness rightfully may refuse to answer where * * * the questions asked are not pertinent to the matter under inquiry.' Sinclair v. United States, supra, 279 U.S. at 292, 49 S.Ct. at 271. Secondly, because the defendant is presumed to be innocent, it is 'incumbent upon the United States to plead and show that the question (he refused to answer) pertained to some matter under investigation.' Id., at 296—297, 49 S.Ct. at 273. Finally, Sinclair held that the question of perti nency is one for determination by the court as a matter of law. Id., at 298, 49 S.Ct. at 273.
6
In that case the Court had before it an indictment which set out in specific and lengthy detail the subject under investigation by the Senate Committee which had summoned Sinclair. The Court was thereby enabled to make an enlightened and precise determination that the question he had refused to answer was pertinent to that subject. Id., at 285—289, 296—298, 49 S.Ct. at 269—270, 272—273.
7
That the making of such a determination would be a vital function of the federal judiciary in a prosecution brought under 2 U.S.C. § 192, 2 U.S.C.A. § 192 was clearly foreseen by the Congress which originally enacted the law in 1857.8 Congress not only provided that a person could be prosecuted only upon an indictment by a grand jury, but, as the record of the legislative debates shows, Congress was expressly aware that pertinency to the subject under inquiry was the basic preliminary question which the federal courts were going to have to decide in determining whether a criminal offense had been alleged or proved. The principal spokesman for the bill, Senator Bayard, repeatedly made this very point:
8
'The bill provides for punishing a witness who shall refuse to answer any question 'pertinent' to the matter of inquiry under consideration before the House or its committee. If he refuses to answer an irrelevant question, he is not subject to the penalties of the bill. The question must be pertinent to the subjectmatter, and that will have to be decided by the courts of justice on the indictment. That power is not given to Congress; it is given appropriately to the judiciary.' Cong. Globe, 34th Cong., 3d Sess. 439 (1857).
9
'This law does not propose to give to this miscellaneous political body the power of punishment; but one of its greatest recommendations is, that it transfers that power of punishment to a court of justice after judicial inquiry. All that is to be done in the case of a refusal to testify is to certify the fact to the district attorney, who is to lay it before the grand jury, and if the party is indicted he is bound to answer according to the terms of the law, as any other person would for an offense against the laws of the land. * * * I am aware that legislative bodies have transcended their powers—that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of coordinate branches of the Government; but if our institutions are to last, there can be no greater safeguard than will result from transferring that which now stands on an indefinite power (the punishment as well as the offense resting in the breast of either House) from Congress to the courts of justice. When a case of this kind comes before a court, will not the first inquiry be, have Congress jurisdiction of the subject-matter?—has the House which undertakes to inquire, jurisdiction of the subject? If they have not, the whole proceedings are coram non judice and void, and the party cannot be held liable under indictment. The Court would quash the indictment if this fact appeared on its face; and if it appeared on the trial they would direct the jury to acquit.' Cong. Globe, 34th Cong., 3d Sess. 440 (1857).
10
'* * * The law prescribes that, in case of such refusal, the House shall certify the fact to the district attorney, and he shall bring the matter before the grand jury. When that comes up by indictment before the court, must not the court decide whether the question put was pertinent to the inquiry? Of course they must; and they cannot hold the party guilty without doing it.' Cong. Globe, 34th Cong., 3d Sess. 444—445 (1857).
11
These forecasts of the office which the federal courts would be called upon to perform under 2 U.S.C. § 192, 2 U.S.C.A. § 192 have been amply borne out by the cases which have arisen under the statute. The crucial importance of determining the issue of pertinency is reflected in many cases which have come here since Sinclair, supra. Watkins v. United States, 354 U.S. 178, 208, 77 S.Ct. 1173, 1189, 1 L.Ed.2d 1273; Sacher v. United States, 356 U.S. 576, 577, 78 S.Ct. 842, 843, 2 L.Ed.2d 987; Barenblatt v. United States, 360 U.S. 109, 123—125, 79 S.Ct. 1081, 1091—1092, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399, 407—409, 413, 81 S.Ct. 567, 572—573, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 435—436, 81 S.Ct. 584, 587, 5 L.Ed.2d 653; Deutch v. United States, 367 U.S. 456, 467—471, 81 S.Ct. 1587, 1593—1595, 6 L.Ed.2d 963. Our decisions have pointed out that the obvious first step in determining whether the questions asked were pertinent to the subject under inquiry is to ascertain what that subject was. See, e.g., Deutch v. United States, supra, at 469, 81 S.Ct. at 1594. Identification of the subject under inquiry is also an essential preliminary to the determination of a host of other issues which typically arise in prosecutions under the statute. In Wilkinson v. United States, supra, for example, the Court pointed out that in order properly to consider any of the many issues there presented, 'the starting point must be to determine the subject matter of the subcommittee's inquiry.' 365 U.S., at 407, 81 S.Ct. at 572.
12
Where, as in the Sinclair case, the subject under inquiry has been identified in the indictment, this essential first step has presented no problem. Where, as in the more recent cases, the indictment has not identified the topic under inquiry, the Court has often found it difficult or impossible to ascertain what the subject was. The difficulty of such a determination in the absence of an allegation in the indictment is illustrated by Deutch v. United States, supra. In that case the members of this Court were in sharp disagreement as to what the subject under subcommittee inquiry had been. Moreover, all of us disagreed with the District Court's theory, and the Court of Appeals had not even ventured a view on the question. 367 U.S., at 467, 81 S.Ct. at 1593. In Watkins v. United States, supra, the Court found it not merely difficult, but actually impossible to determine what the topic under subcommittee inquiry had been at the time the petitioner had refused to answer the questions addressed to him. 'Having exhausted the several possible indicia of the 'question under inquiry,' we remain unenlightened as to the subject to which the questions asked petitioner were pertinent.' 354 U.S., at 214, 77 S.Ct. at 1193.9
13
To be sure, the fact that difficulties and doubts have beset the federal courts in trying to ascertain the subject under inquiry in cases arising under 2 U.S.C. § 192, 2 U.S.C.A. § 192 could hardly justify, in the abstract, a requirement that indictments under the statute contain averments which would simplify the courts' task. Difficult and doubtful questions are inherent in the judicial process, particularly under a system of criminal law which places heavy emphasis upon the protection of the rights and liberties of the individual. Courts sit to resolve just such questions, and rules of law are not to be made merely to suit judicial convenience. But a proliferation of doubtful issues which not only burden the judiciary, but, because of uncertainties inherent in their resolution, work a hardship upon both the prosecution and the defense in criminal cases, is hardly a desideratum. And the repeated appearance in prosecutions under a particular criminal statute of the same critical and difficult question, which could be obviated by a simple averment in the indictment, invites inquiry into the purposes and functions which a grand jury indictment is intended to serve. The cases we have discussed, therefore, furnish an appropriate background for the inquiry to which we now turn.
14
Any discussion of the purpose served by a grand jury indictment in the administration of federal criminal law must begin with the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment provides that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * * *.' We need not pause to consider whether an offense under 2 U.S.C. § 192, 2 U.S.C.A. § 192 is an 'infamous crime,' Duke v. United States, 301 U.S. 492, 57 S.Ct. 835, 81 L.Ed. 1243, since Congress has from the beginning explicitly conferred upon those prosecuted under the statute the protection which the Fifth Amendment confers, by providing that no one can be prosecuted for this offense except upon an indictment by a grand jury. This specific guaranty, as well as the Fifth Amendment's Due Process, Clause, are, therefore, both brought to bear here. Of like relevance is the guaranty of the Sixth Amendment that 'In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; * * *.'
15
The constitutional provision that a trial may be held in a serious federal criminal case only if a grand jury has first intervened reflects centuries of antecedent development of common law, going back to the Assize of Clarendon in 1166.10 'The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.' Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397. See McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. 153; Orfield, Criminal Procedure from Arrest to Appeal, 137—140, 144 146.
16
For many years the federal courts were guided in their judgments concerning the construction and sufficiency of grand jury indictments by the common law alone. Not until 1872 did Congress enact general legislation touching upon the subject. In that year a statute was enacted which reflected the drift of the law away from the rules of technical and formalized pleading which had characterized an earlier era. The 1872 statute provided that 'no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.' 17 Stat. 198. This legislation has now been repealed, but its substance is preserved in the more generalized provision of Rule 52(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which states that 'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.'11
17
There was apparently no other legislation dealing with the subject of indictments generally until the promulgation of Rule 7(c), Fed.Rules Crim.Proc., in 1946. The Rule provides:
18
'The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.'
19
As we have elsewhere noted, 'This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. (Citing cases.) This has been a salutary development in the criminal law.' Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041. 'But,' as the Smith opinion went on to point out, 'the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules.' Ibid. Resolution of the issue presented in the cases before us thus ultimately depends upon the nature of 'the substantial safeguards' to a criminal defendant which an indictment is designed to provide. Stated concretely, does the omission from an indictment under 2 U.S.C. § 192, 2 U.S.C.A. § 192 of the subject under congressional committee inquiry amount to no more than a technical deficiency of no prejudice to the defendant? Or does such an omission deprive the defendant of one of the significant protections which the guaranty of a grand jury indictment was intended to confer?
20
In a number of cases the Court has emphasized two of the protections which an indictment is intended to guarantee, reflected by two of the criteria by which the sufficiency of an indictment is to be measured. These criteria are, first, whether the indictment 'contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet," and, secondly, "in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606.' Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. See Potter v. United States, 155 U.S. 438, 445, 15 S.Ct. 144, 146, 39 L.Ed. 214; Bartell v. United States, 227 U.S. 427, 431, 33 S.Ct. 383, 384, 57 L.Ed. 583; Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314; United States v. Debrow, 346 U.S. 374, 377 378, 74 S.Ct. 113, 115—116, 98 L.Ed. 92.
21
Without doubt the second of these preliminary criteria was sufficiently met by the indictments in these cases. Since the indictments set out not only the times and places of the hearings at which the petitioners refused to testify, but also specified the precise questions which they then and there refused to answer, it can hardly be doubted that the petitioners would be fully rotected from again being put in jeopardy for the same offense, particularly when it is remembered that they could rely upon other parts of the present record in the event that future proceedings should be taken against them. See McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. 153, 160; Bartell v. United States, 227 U.S. 427, 433, 33 S.Ct. 383, 384, 57 L.Ed. 583. The vice of these indictments, rather, is that they failed to satisfy the first essential criterion by which the sufficiency of an indictment is to be tested, i.e., that they failed to sufficiently apprise the defendant 'of what he must be prepared to meet.'
22
As has been pointed out, the very core of criminality under 2 U.S.C. § 192, 2 U.S.C.A. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.
23
'It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species,—it must descend to particulars." United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588. An indictment not framed to apprise the defendant 'with reasonable certainty, of the nature of the accusation against him * * * is defective, although it may follow the language of the statute.' United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819. 'In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; * * *.' United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135. 'Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.' United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516. See also Pettibone v. United States, 148 U.S. 197, 202—204, 13 S.Ct. 542, 545, 37 L.Ed. 419; Blitz v. United States, 153 U.S. 308, 315, 14 S.Ct. 924, 927, 38 L.Ed. 725; Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 255, 43 L.Ed. 505; Morissette v. United States, 342 U.S. 246, 270, n. 30, 72 S.Ct. 240, 253, 96 L.Ed. 288. Cf. United States v. Petrillo, 332 U.S. 1, 10—11, 67 S.Ct. 1538, 1543, 91 L.Ed. 1877.12 That these basic principles of fundamental fairness retain their full vitality under modern concepts of pleading, and specifically under Rule 7(c) of the Federal Rules of Criminal Procedure, is illustrated by many recent federal decisions.13
24
The vice which inheres in the failure of an indictment under 2 U.S.C. § 192, 2 U.S.C.A. § 192 to identify the subject under inquiry is thus the violation of the basic principle 'that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, * * *.' United States v. Simmons, supra, 96 U.S. at 362. A cryptic form of indictment in cases of this kind requires the defendant to go to trial with the chief issue undefined. It enables his conviction to rest on one point and the affirmance of the conviction to rest on another. It gives the prosecution free hand on appeal to fill in the gaps of proof by surmise or conjecture. The Court has had occasion before now to condemn just such a practice in a quite different factual setting. Cole v. Arkansas, 333 U.S. 196, 201 202, 68 S.Ct. 514, 517, 92 L.Ed. 644. And the unfairness and uncertainty which have characteristically infected criminal proceedings under this statute which were based upon indictments which failed to specify the subject under inquiry are illustrated by the cases in this Court we have already discussed. The same uncertainty and unfairness are underscored by the records of the cases now before us. A single example will suffice to illustrate the point.
25
In No. 12, Price v. United States, the petitioner refused to answer a number of questions put to him by the Internal Security Subcommittee of the Senate Judiciary Committee. At the beginning of the hearing in question, the Chairman and other subcommittee members made widely meandering statements purporting to identify the subject under inquiry. It was said that the hearings were 'not * * * an attack upon the free press,' that the investigation was of 'such attempt as may be disclosed on the part of the Communist Party * * * to influence or to subvert the American press.' It was also said that 'We are simply investigating communism wherever we find it.' In dealing with a witness who testified shortly before Price, counsel for the subcommittee emphatically denied that it was the subcommittee's purpose 'to investigate Communist infiltration of the press and other forms of communication.' But when Price was called to testify before the subcommittee no one offered even to attempt to inform him of what subject the subcommittee did have under inquiry. At the trial the Government took the position that the subject under inquiry had been Communist activities generally. The district judge before whom the case was tried found that 'the questions put were pertinent to the matter under inquiry' without indicating what he thought the subject under inquiry was. The Court of Appeals, in affirming the conviction, likewise omitted to state what it thought the subject under inquiry had been. In this Court the Government contends that the subject under inquiry at the time the petitioner was called to testify was 'Communist activity in news media.'14
26
It is difficult to imagine a case in which an indictment's insufficiency resulted so clearly in the indictment's failure to fulfill its primary office—to inform the defendant of the nature of the accusation against him. Price refused to answer some questions of a Senate subcommittee. He was not told at the time what subject the subcommittee was investigating. The prior record of the subcommittee hearings, with which Price may or may not have been familiar, gave a completely confused and inconsistent account of what, if anything, that subject was. Price was put to trial and convicted upon an indictment which did not even purport to inform him in any way of the identity of the topic under subcommittee inquiry. At every stage in the ensuing criminal proceeding Price was met with a different theory, or by no theory at all, as to what the topic had been. Far from informing Price of the nature of the accusation against him, the indictment instead left the prosecution free to roam at large—to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal. Yet Price could be guilty of no criminal offense unless the questions he refused to answer were in fact pertinent to a specific topic under subcommittee inquiry at the time he was interrogated. Sinclair v. United States, 279 U.S. 263, at 292, 49 S.Ct. 268, at 271, 73 L.Ed. 692.
27
It has long been recognized that there is an important corollary purpose to be served by the requirement that an indictment set out 'the specific offence, coming under the general description,' with which the defendant is charged. This purpose, as defined in United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588, is 'to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.'15 This criterion is of the greatest relevance here, in the light of the difficulties and uncertainties with which the federal trial and reviewing courts have had to deal in cases arising under 2 U.S.C. § 192, 2 U.S.C.A. § 192, to which reference has already been made. See, e.g., Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Deutch v. United States, 367 U.S. 456, 81 S.Ct. 1587, 6 L.Ed.2d 963. Viewed in this context, the rule is designed not alone for the protection of the defendant, but for the benefit of the prosecution as well, by making it possible for courts called upon to pass on the validity of convictions under the statute to bring an enlightened judgment to that task. Cf. Watkins v. United States, supra.
28
It is argued that any deficiency in the indictments in these cases could have been cured by bills of particulars.16 But it is a settled rule that a bill of particulars cannot save an invalid indictment. See United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 425, 74 L.Ed. 1076; United States v. Lattimore, 94 U.S.App.D.C. 268, 215 F.2d 847; Babb v. United States, 5 Cir., 218 F.2d 538; Steiner v. United States, 9 Cir., 229 F.2d 745; United States v. Dierker, D.C., 164 F.Supp. 304; 4 Anderson, Wharton's Criminal Law and Procedure, § 1870. When Congress provided that no one could be prosecuted under 2 U.S.C. § 192, 2 U.S.C.A. § 192 except upon an indictment, Congress made the basic decision that only a grand jury could determine whether a person should be held to answer in a criminal trial for refusing to give testimony pertinent to a question under congressional committee inquiry. A grand jury, in order to make that ultimate determination, must necessarily determine what the question under inquiry was. To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. See Orfield, Criminal Procedure from Arrest to Appeal, 243.
29
This underlying principle is reflected by the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076; Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. 'If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment be a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed. * * * Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.' Ex parte Bain, supra, 121 U.S. at 10, 13, 7 S.Ct. at 786. We reaffirmed this rule only recently, pointing out that 'The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.' Stirone v. United States, supra, 361 U.S. at 218, 80 S.Ct. at 273.17
30
For these reasons we conclude that an indictment under 2 U.S.C. § 192, 2 U.S.C.A. § 192 must state the question under congressional committee inquiry as found by the grand jury18 Only then can the federal courts responsibly carry out the duty which Congress imposed upon them more than a century ago:
31
'The question must be pertinent to the subject-matter, and that will have to be decided by the courts of justice on the indictment.'19
32
Reversed.
33
Mr. Justice FRANKFURTER took no part in the decision of these cases.
34
Mr. Justice BRENNAN took no part in the consideration or decision of No. 10, Whitman v. United States.
35
Mr. Justice WHITE took no part in the consideration or decision of these cases.
36
Mr. Justice DOUGLAS, concurring.
37
While I join the opinion of the Court, I think it is desirable to point out that in a majority of the six cases that we dispose of today no indictment, however drawn, could in my view be sustained under the requirements of the First Amendment.
38
The investigation was concededly an investigation of the press. This was clearly brought out by the record in Shelton, wherein the following colloquy was alleged to have taken place at the commencement of the Subcommittee hearings:
39
'Senator Hennings. On the same subject matter. I do believe it is very important at the outset for us to make it abundantly clear, if that is the purpose of counsel, and if it is the purpose of this committee, that this is not in any sense an attack upon the free press of the United States.
40
'The Chairman. Why, certainly, that is true.
41
'Senator Hennings. And I think, too, that it should be clear that the best evidence of any subversion or infiltration into any news-dispensing agency or opinion-forming journal is certainly the product itself.
42
'The Chairman. That is correct.
43
'Senator Hennings. Of course, the committee is interested in the extent and nature of so-called Communist infiltration, if such exists, into any news-dispensing agency.
44
'The Chairman. Correct.
45
'Senator Hennings. But I would like to have the position of the committee, if it be the position of the majority of this committee, since the committee has not met to determine whether one policy or another is to be pursued in the course of these hearings—that it be generally known and understood that this is not an attack upon any one newspaper, upon any group of newspapers as such, but an effort on the part of this committee to show such participation and such attempt as may be disclosed on the part of the Communist Party in the United States or elsewhere, indeed, to influence or to subvert the American press.
46
'And I do think that at some later time, perhaps, it might be appropriate for executives of some of the newspapers under inquiry, whose employees are under inquiry, to be called and to testify and for them to show, if they can show, that the end product, the newspaper itself, has not been influenced by these efforts.
47
'The Chairman. The Chair thinks that is a very find and very accurate statement, one with which the Chair certainly agrees, in its entirety.
48
'We are not singling out any newspaper and not investigating any newspaper or any group of newspapers. We are simply investigating communism wherever we find it,* and I think that when this series of hearings is over that no one can say that any newspaper or any employees of any one newspaper has been singled out.
49
'Senator Hennings. Thank you, Mr. Chairman.
50
'Senator Watkins. I would like to say I agree with Senator Hennings' statement, Mr. Chairman.' R. 72—73.
51
The New York Times was a prime target of the investigation, 30 of the 38 witnesses called at the 1955 executive session and 15 of the 18 called at the 1956 public hearings being present or past employees of that paper.
52
The power to investigate is limited to a valid legislative function. Inquiry is precluded where the matter investigated is one on which 'no valid legislation' can be enacted. Kilbourn v. Thompson, 103 U.S. 168, 195, 26 L.Ed. 377. Since the First Amendment provides that 'Congress shall make no law * * * abridging the freedom * * * of the press,' this present investigation was plainly unconstitutional. As we said in Watkins v. United States, 354 U.S. 178, 197, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273:
53
'Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by law making.'
54
Under our system of government, I do not see how it is possible for Congress to pass a law saying whom a newspaper or news agency or magazine shall or shall not employ. If this power exists, it can reach the rightist as well as the leftist press, as United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, shows. Whether it is used against the one or the other will depend on the mood of the day. Whenever it is used to ferret out the ideology of those collecting news or writing articles or editorials for the press, it is used unconstitutionally. The theory of our Free Society is that government must be neutral when it comes to the press—whether it be rightist or leftist, orthodox or unorthodox. The theory is that in a community where men's minds are free, all shades of opinion must be immune from governmental inquiry lest we end with regimentation. Congress has no more authority in the field of the press than it does where the pulpit is involved. Since the editorials written and the news printed and the policies advocated by the press are none of the Government's business, I see no justification for the Government investigating the capacities, pacities, leanings, ideology, qualifications, prejudices or politics of whose who collect or write the news. It was conceded on oral argument that Congress would have no power to establish standards of fitness for those who work for the press. It was also conceded that Congress would have no power to prescribe loyalty tests for people who work for the press. Since this investigation can have no legislative basis as far as the press is concerned, what then is its constitutional foundation?
55
It is said that Congress has the power to determine the extent of Communist infiltration so that it can know how much tighter the 'security' laws should be made. This proves too much. It would give Congress a roving power to inquire into fields in which it could not legislate. If Congress can investigate the press to find out if Communists have infiltrated it, it could also investigate the churches for the same reason. Are the pulpits being used to promote the Communist cause? Were any of the clergy ever members of the Communist Party? How about the governing board? How about those who assist the pastor and perhaps help prepare his sermons or do the research? Who comes to the confession and discloses that he or she once was a Communist?
56
There is a dictum in United States v. Rumely, 345 U.S. 41, 43, 73 S.Ct. 543, 544, 97 L.Ed. 770, that the reach of the investigative power of Congress is measured by the 'informing function of Congress,' a phrase taken from Woodrow Wilson's Congressional Government (1885), p. 303. But the quotation from Wilson was mutilated, because the sentences which followed his statement that 'The informing function of Congress should be preferred even to its legislative function' were omitted from the Rumely opinion. Those omitted sentences make abundantly clear that Wilson was speaking, not of a congressional inquiry roaming at large, but of one that inquired into and discussed the functions and operations of government. Wilson said:
57
'The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its adminstration. The talk on the part of Congress which we sometimes justly condemn is the profitless squabble of words over frivolous bills or selfish party issues. It would be hard to conceive of there being too much talk about the practical concerns and processes of government. Such talk it is which, when earnestly and purposefully conducted, clears the public mind and shapes the demands of public opinion.' Id., at 303—304.
58
The power to inform is, in my view, no broader than the power to legislate.
59
Congress has no power to legislate either on 'religion' or on the 'press.' If an editor or a minister violates the law, he can be prosecuted. But the investigative power, as I read our Constitution, is barred from certain areas by the First Amendment. If we took the step urged by the prosecution, we would allow Congress to enter the forbidden domain.
60
The strength of the 'press' and the 'church' is in their freedom. If they pervert or misuse their power, informed opinion will in time render the verdict against them. A paper or pulpit might conceivably become a mouthpiece for Communist ideology. That is typical of the risks a Free Society runs. The alternative is governmental oversight, governmental investigation, governmental questioning, governmental harassment, governmental exposure for exposure's sake. Once we crossed that line, we would sacrifice the values of a Free Society for one that has a totalitarian cast.
61
Some think a certain leeway is necessary or desirable, leaving it to the judiciary to curb what judges may from time to time think are excessive practices. Thus, a judge with a professorial background may put the classroom in a preferred position. One with a background of a prosecutor dealing with 'subversives' may be less tolerant. When a subjective standard is introduced, the line between constitutional and unconstitutional conduct becomes vague, uncertain, and unpredictable. The rationalization, of course, reduces itself ultimately to the idea that 'the judges know best.' My idea is and has been that those who put the words of the First Amendment in the form of a command knew best. That is the political theory of government we must sustain until a constitutional amendment is adopted that puts the Congress astride the 'press.'
62
Mr. Justice CLARK, dissenting.
63
Although I have joined Brother HARLAN in dissenting on the grounds ably expressed in his opinion, the Court today so abruptly breaks with the past that I must visually add my voice in protest. The statute under which these cases were prosecuted, 2 U.S.C. § 192, 2 U.S.C.A. § 192, was originally passed 105 years ago. Case after case has come here during that period. Still the Court is unable to point to one case—not one—in which there is the remotest suggestion that indictments thereunder must include any of the underlying facts necessary to evaluate the propriety of the unanswered questions. Following the universal art and practice, indictments under this statute have commonly phrased the element of pertinency in the statutory language, i.e., the unanswered question was 'pertinent to the question under inquiry.' This Court in Sacher v. United States, 356 U.S. 576, 78 S.Ct. 842, 2 L.Ed.2d 987 (1958), had an opportunity to put a stop to this widespread practice but instead reversed on other, rather unsubstantial grounds without even acknowledging that numerous defendants were being denied 'one of the significant protectioins which the guaranty of a grand jury indictment was intended to confer.' In requiring these indictments to 'identify the subject which was under inquiry at the time of the defendant's alleged default or refusal to answer,' the Court has concocted a new and novel doctrine to upset congressional contempt convictions. A rule has been sown which, as pointed out by Brother HARLAN, has no seeds in general indictment law and which will reap no real benefits in congressional contempt cases. If knowing the subject matter under investigation is actually important to these recalcitrant witnesses, they can utilize the right recognized in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957), of demanding enlightenment from the questioning body or the time-honored practice of requesting a bill of particulars from the prosecutor. Let us hope that the reasoning of the Court today does not apply to indictments under other criminal statutes, for if it does an uncountable number of indictments will be invalidated. If, however, the rule is only cast at congressional contempt cases it is manifestly unjust.
64
By fastening upon indictment forms under § 192 its superficial luminosity requirement the Court creates additional hazards to the successful prosecution of congressional contempt cases, which impair the informing procedures of the Congress by encouraging contumacy before its committees. It was only five years ago in my dissenting opinion in Watkins that I indicated the rule in that case might 'well lead to trial of all contempt cases before the bar * * *' of the House of Congress affected. Watkins v. United States, supra, 354 U.S. at p. 225, 77 S.Ct. at p. 1199. In that short period the Court has now upset 10 convictions under § 192. This continued frustration of the Congress in the use of the judicial process to punish those who are contemptuous of its committees indicates to me that the time may have come for Congress to revert to 'its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House (affected).' Id., at 206, 77 S.Ct., at 1189. Perhaps some simplified method may be found to handle such matters without consuming too much of the time of the full House involved. True, a recalcitrant witness would have to be released at the date of adjournment, but at least contumacious conduct would then receive some punishment. The dignity of the legislative process deserves at least that much sanction.
65
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.
66
The ground rules for testing the sufficiency of an indictment are twofold: (1) does the indictment adequately inform the defendant of the nature of the charge he will have to meet; (2) if the defendant is convicted, and later prosecuted again, will a court, under what has been charged, be able to determine the extent to which the defense of double jeopardy is available? United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92.
67
Rule 7(c) of the Federal Rules of Criminal Procedure, effective in 1946, 18 U.S.C.A., was of course not intended to abrogate or weaken either of these yardsticks. Its purpose simply was to do away with the subleties and uncertainties that had characterized criminal pleading at common law. The rule provides in pertinent part:
68
'The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement.' The rule was 'designed to eliminate technicalities' and is 'to be construed to secure simplicity in procedure.' Debrow, at 376, 74 S.Ct. at 115.
69
An essential element of the offense established by 2 U.S.C. § 192, 2 U.S.C.A. § 192,1 is that the questions which the defendant refused to answer were 'pertinent to the question under inquiry' before the inquiring congressional committee. Each of the indictments in these cases charged this element of the offense in the language of the statute, following the practice consistently employed since 1950 in the District of Columbia, where most of the § 192 cases have been brought.2 The Court now holds, however, that without a statement of the actual subject under inquiry, this allegation was inadequate to satisfy the 'apprisal' requisite of a valid indictment. At the same time the allegation is found sufficient to satisfy the 'jeopardy' requisite.
70
The Court's holding is contrary to the uniform course of decisions in the lower federal courts. The Court of Appeals for the District of Columbia Circuit, sitting first as a panel and later en banc, has upheld 'pertinency' allegations which, like the present indictment, did not identify the particular subject being investigated. Barenblatt v. United States, 100 U.S.App.D.C. 13, 240 F.2d 875 (panel); Sacher v. United States, 102 U.S.App.D.C. 264, 252 F.2d 828 (en banc).3 The Court of Appeals for the Second Circuit is of the same view. United States v. Josephson, 165 F.2d 82;4 United States v. Lamont, 236 F.2d 312.5 And so, quite evidently, is the Court of Appeals for the Fifth Circuit. Braden v. United States, 272 F.2d 653.6 No Court of Appeals has held otherwise. And nothing in this Court's more recent cases could possibly be taken as foreshadowing the decision made today.7
71
The reasons given by the Court for its sudden holding, which unless confined to contempt of Congress cases bids fair to throw the federal courts back to an era of criminal pleading from which it was thought they had finally emerged, are novel and unconvincing.
I.
72
It is first argued that an allegation of 'pertinency' in the statutory terms will not do, because that element is at 'the very core of criminality' under § 192. This is said to follow from what 'our cases have uniformly held.' Ante, 369 U.S., p. 764, 82 S.Ct. p. 1047. I do not so understand the cases on which the Court relies. It will suffice to examine the three cases from which quotations have been culled. Ante, 369 U.S., pp. 765—766, 82 S.Ct., pp. 1047—1048.
73
United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, involved an indictment under the Enforcement Act of 1870 (16 Stat. 140) making it a felony to conspire to prevent any person from exercising and enjoying 'any right or privilege granted or secured to him by the Constitution or laws of the United States.' Most of the counts were dismissed on the ground that they stated no federal offense whatever. The remainder were held inadequate from the standpoint of 'apprisal,' in that they simply alleged a conspiracy to prevent certain citizens from enjoying rights 'granted and secured to them by the constitution and laws of the United States,' such rights not being otherwise described or identified. Small wonder that these opaque allegations drew from the Court the comment that the indictment "must descend to particulars." Id., at 558. Indeed, the Court observed: 'According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all.' Id., at 557. (Emphasis supplied.)
74
United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819, was concerned with an indictment involving illegal distilling. Revised Statutes § 3266 made it an offense to distill spirits on premises where vinegar 'is' manufactured. One count of the indictment charged the defendant with causing equipment on premises where vinegar 'was' manufactured to be used for distilling. This count was dismissed for its failure (1) to identify the person who had so used the equipment or to allege that his identity was unknown to the grand jurors; and (2) to allege that the distilling and manufacture of vinegar were coincidental, as required by the statute.8 What is more significant from the standpoint of the present cases is that in sustaining another count of the indictment charging the defendant with engaging in the business of distilling 'with the intent to defraud the United States of the tax' on the spirits (R.S. § 3281), the Court held that it was not necessary to allege 'the particular means by which the United States was to be defrauded of the tax.' Id., at 364.
75
United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135, held no more than that an indictment charging forgery was insufficient for failure to allege scienter, which, though not expressly required by the statute, the Court found to be a necessary element of the crime. Hence a charge in the statutory language would not suffice. Section 192 of course contains no such gap in its provisions. What the Court now requires of these indictments under § 192 involves not the supplying of a missing element of the crime, but the addition of the particulars of an element already clearly alleged.
76
To me it seems quite clear that even under these cases, decided long before Rule 7(c) came into being, the 'pertinency' allegations of the present indictments would have been deemed sufficient. Other early cases indicate the same thing. See, e.g., United States v. Mills, 7 Pet. 138, 142, 8 L.Ed. 636; Evans v. United States, 153 U.S. 584, 587, 14 S.Ct. 934, 936, 38 L.Ed. 830;9 Markham v. United States, 160 U.S. 319, 325, 16 S.Ct. 288, 291, 40 L.Ed. 441;10 Bartell v. United States, 227 U.S. 427, 433—434, 33 S.Ct. 383, 384—385, 57 L.Ed. 583.11 I think there can be no doubt about the matter after Rule 7(c).
77
In United States v. Debrow, supra, the Court in reversing the dismissal of perjury indictments which had gone on the ground that they had not alleged the name or authority of the persons administering the oath, said (346 U.S., at 376—378, 74 S.Ct., at 114—116):
78
'The Federal Rules of Criminal Procedure, 18 U.S.C.A., were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure.
79
'The charges of the indictments followed substantially the wording of the statute, which embodies all the elements of the crime, and such charges clearly informed the defendants of that with which they were accused, so as to enable them to prepare their defense and to plead the judgment in bar of any further prosecutions for the same offense. It is inconceivable to us how the defendants could possibly be misled as to the offense with which they stood charged. The sufficiency of the indictment is not a question of whether it could have been more definite and certain. If the defendants wanted more definite information as to the name of the person who administered the oath to them, they could have obtained it by requesting a bill of particulars. Rule 7(f), F.R.Crim.Proc.' (Emphasis supplied.)
80
It is likewise 'inconceivable' to me how the indictments in the present cases can be deemed insufficient to advise these petitioners of the nature of the charge they would have to meet. The indictments gave them the name of the committee before which they had appeared; the place and the dates of their appearances; the references to the enabling legislation under which the committee acted; and the questions which the petitioners refused to answer. The subject matter of the investigations had been stated to the petitioners at the time of their appearances before the committees. And the committee transcripts of the hearings were presumably in their possession and, if not, were of course available to them.
81
Granting all that the Court says about the crucial character of pertinency as an element of this offense, it is surely not more so than the element of premeditation in the crime of first degree murder. If from the standpoint of 'apprisal' it is necessary to particularize 'pertinency' in a § 192 indictment, it should follow, a fortiori, that, contrary to what is prescribed in Forms 1 and 2 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., a first degree murder indictment should particularize 'premeditation.'
II.
82
The Court says that its holding is needed to prevent the Government from switching on appeal, to the prejudice of the defendants, to a different theory of pertinency from that on which the conviction may have rested. Ante, 369 U.S., pp. 766—768, 82 S.Ct., pp. 1048—1049. There are several good answers to this.
83
To the extent that this fear relates to the subject under investigation, the Government cannot of course travel outside the confines of the trial record, of which the defendant has full knowledge. If what is meant is that the Government may not modify on appeal its 'trial' view of the 'connective reasoning' (supra, 369 U.S., p. 784, 82 S.Ct., p. 1058, note 6) relied on to establish the germaneness of the questions asked to the subject matter of the inquiry, surely it would be free to do so, this aspect of pertinency being simply a matter of law, Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 274, 73 L.Ed. 692. Moreover the Court does not find these indictments deficient because they failed to allege the 'connective reasoning.'
84
Beyond these considerations, a defendant has ample means for protecting himself in this regard. By objecting at the committee hearing to the pertinency of any question asked him he may 'freeze' this issue, since the Government's case on this score must then stand or fall on the pertinency explanation given by the committee in response to such an objection. Deutch v. United States, 367 U.S. 456, 472—473, 81 S.Ct. 1587, 1596, 6 L.Ed.2d 963 (dissenting opinion); cf. Watkins v. United States, supra, 354 U.S. at 214—215, 77 S.Ct. at 1193, 1 L.Ed.2d 1273; Barenblatt v. United States, 360 U.S. 109, 123—125, 79 S.Ct. 1081, 1091, 1092, 3 L.Ed.2d 1115. If he has failed to make a pertinency objection at the committee hearing, thereby leaving the issue 'at large' for the trial (Deutch, ibid.), he may still seek a particularization through a bill of particulars. Cf. United States v. Kamin, D.C., 136 F.Supp. 791, 795 n. 4.
85
It should be noted that no pertinency objection was made by any of these petitioners at the committee hearings. Further, no motions for a bill of particulars were made in No. 12, Price, to which the Court especially addresses itself (ante, 369 U.S., pp. 766—768, 82 S.Ct., pp. 1048—1049), or in No. 8, Russell, No. 10, Whitman, and No. 11, Liveright. In No. 9, Shelton, and No. 128, Gojack, such motions were made. However, no appeal was taken from the denial of the motion in Gojack, and in Shelton the sufficiency of the particulars furnished by the Government was not questioned either by a motion for a further bill or on appeal.
III.
86
Referring to certain language in the Cruikshank case, supra, the Court suggests that the present holding is supported by a further 'important corollary purpose' which an indictment is intended to serve: to make 'it possible for courts called upon to pass on the validity of convictions under the statute to bring an enlightened judgment to that task.' Ante, 369 U.S., pp. 768, 769, 82 S.Ct., pp. 1049—1050.
87
But whether or not the Government has established its case on 'pertinency' is something that must be determined on the record made at the trial, not upon the allegations of the indictment. There is no such thing as a motion for summary judgment in a criminal case. While appellate courts might be spared some of the tedium of going through these § 192 records were the allegations of indictments to spell out the 'pertinency' facts, the Court elsewhere in its opinion recognizes that the issue at hand can hardly be judged in terms of whether fuller indictments 'would simplify the courts' task.' Ante, 369 U.S., p. 760, 82 S.Ct., p. 1045.
88
The broad language in Cruikshank on which the Court relies cannot properly be taken as meaning more than that an indictment must set forth enough to enable a court to determine whether a criminal offense over which the court has jurisdiction has been alleged. Cf. McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. 153, 159—160 (1942); Orfield, Criminal Procedure from Arrest to Appeal, 222—226, 227, n. 107.12 Certainly the allegations of these indictments meet such requirements.
IV.
89
The final point made by the Court is perhaps the most novel of all. It is said that a statement of the subject under inquiry is necessary in the indictment in order to fend against the possibility that a defendant may be convicted on a theory of pertinency based upon a subject under investigation different from that which may have been found by the grand jury. An argument similar to this was rejected by this Court many years ago in Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 435, 480, 40 L.Ed. 606, where an indictment charging the defendant with mailing obscene matter, only generally described, was upheld over strong dissent (id., at 45—51, 16 S.Ct. at 480—483) asserting that the accused was entitled to know the particular parts of the material which the grand jury had deemed obscene.13
90
This proposition is also certainly unsound on principle. In the last analysis it would mean that a prosecutor could not safely introduce or advocate at a trial evidence or theories, however relevant to the crime charged in the indictment, which he had not presented to the grand jury. Such cases as Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076, and Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, lend no support to the Court's thesis. They held only that, consistently with the Fifth Amendment, a trial judge could not amend the indictment itself, either by striking or adding material language, or, amounting to the latter, by permitting a conviction on evidence or theories not fairly embraced in the charges made in the indictment. To allow this would in effect permit a defendant to be put to trial upon an indictment found not by a grand jury but by a judge.14
91
If the Court's reasoning in this part of its opinion is sound, I can see no escape from the conclusion that a defendant convicted on a lesser included offense, not alleged by the grand jury in an indictment for the greater offense, would have a good plea in arrest of judgment. (Fed.Rules Crim.Proc. 34.)
92
In conclusion, I realize that one in dissent is sometimes prone to overdraw the impact of a decision with which he does not agree. Yet I am unable to rid myself of the view that the reversal of these convictions on such insubstantial grounds will serve to encourage recalcitrance to legitimate congressional inquiry, stemming from the belief that a refusal to answer may somehow be requited in this Court. And it is not apparent how the seeds which this decision plants in other fields of criminal pleading can well be prevented from sprouting. What is done today calls to mind the trenchant observation made by Mr. Justice Holmes many years ago in Paraiso v. United States, 207 U.S. 368, 372, 28 S.Ct. 127, 129, 52 L.Ed. 249:
93
'The Bill of Rights for the Philippines giving the accused the right to demand the nature and cause of the accusation against him does not fasten forever upon those islands the inability of the seventeenth century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert.'
94
No more so does the Bill of Rights of the United States Constitution 'fasten' on this country these primitive notions of the common law.
95
On the merits these convictions are of course squarely ruled against the petitioners by principles discussed in our recent decisions in the Barenblatt, Wilkinson, and Braden15 cases, as was all but acknowledged at the bar.
96
I would affirm.
1
108 U.S.App.D.C. 140, 280 F.2d 688; 108 U.S.App.D.C. 153, 280 F.2d 701; 108 U.S.App.D.C. 226, 281 F.2d 59; 108 U.S.App.D.C. 160, 280 F.2d 708; 108 U.S.App.D.C. 167, 280 F.2d 715; 108 U.S.App.D.C. 130, 280 F.2d 678.
2
'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.
3
No. 8 and No. 128 grew out of hearings before subcommittees of the House Committee on Un-American Activities. The other four cases grew out of hearings before the Internal Security Subcommittee of the Senate Judiciary Committee.
4
The indictment in No. 8 is typical:
'The Grand Jury charges:
'INTRODUCTION
'On November 17, 1954, in the District of Columbia, a subcommittee of the Committee on Un-American Activities of the House of Representatives was conducting hearings, pursuant to Public Law 601, Section 121, 79th Congress, 2d Session, (60 Stat. 828), and to H.Res. 5, 83d Congress.
'Defendant, Norton Anthony Russell, appeared as a witness before that subcommittee, at the place and on the date above stated, and was asked questions which were pertinent to the question then under inquiry. Then and there the defendant unlawfully refused to answer those pertinent questions. The allegations of this introduction are adopted and incorporated into the counts of this indictment which follow, each of which counts will in addition merely describe the question which was asked of the defendant and which he refused to answer.'
(The questions which Russell allegedly refused to answer were then quoted verbatim under separately numbered counts.)
5
The motion in No. 9 is typical:
'The defendant moves that the indictment be dismissed on the following grounds:
'1. The indictment fails to plead the following essential and material elements of the offense:
'c. the nature of the 'question then under inquiry' to which the questions addressed to defendant are alleged to be relevant.'
6
2 U.S.C. § 194, 2 U.S.C.A. § 194 provides:
'Whenever a witness summoned as mentioned in section 192 (of this title) fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject 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 or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.'
7
The question was presented but not reached in Sacher v. United States, 356 U.S. 576, 78 S.Ct. 842, 2 L.Ed.2d 987, where the conviction was reversed on other grounds. The question was also raised in the petition for certiorari in Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653, but was abandoned when the case was briefed and argued on the merits. Although the question was decided by the lower court in Barenblatt v. United States, 100 U.S.App.D.C. 13, 240 F.2d 875, it was not raised in this Court, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.
The Court of Appeals for the District of Columbia Circuit has passed on the question, holding that the indictment need not set forth the subject under committee inquiry. See Barenblatt v. United States, 100 U.S.App.D.C. 13, 240 F.2d 875; Sacher v. United States, 102 U.S.App.D.C. 264, 252 F.2d 828. Indictments returned in that circuit of course reflect this rule. See cases cited in Mr. Justice HARLAN'S dissenting opinion, post, 369 U.S., p. 782, 82 S.Ct., p. 1057, n. 2. The Court of Appeals for the Second Circuit sustained an indictment under 2 U.S.C. § 192, 2 U.S.C.A. § 192 which did not set forth the subject under inquiry in United States v. Josephson, 165 F.2d 82. However, Josephson appears to have been substantially limited by the same court in United States v. Lamont, 236 F.2d 312, and indictments under 2 U.S.C. § 192, 2 U.S.C.A. § 192 currently being returned in the Second Circuit do in fact set forth the subject under inquiry. See the unreported indictments in United States v. Yarus (D.C.S.D.N.Y.) No. C 152—239 (the opinion acquitting defendant Yarus is reported at 198 F.Supp. 425); United States v. Turoff (D.C.W.D.N.Y.) No. 7539—C (the opinion of the Court of Appeals reversing defendant Turoff's conviction is reported at 2 Cir., 291 F.2d 864).
No other Court of Appeals has passed squarely on the point. In Braden v. United States, 272 F.2d 653, the Court of Appeals for the Fifth Circuit ruled that the indictment need not explain how and why the questions were pertinent to the subject under inquiry, but did not discuss whether the subject itself had to be specified. In a number of other recent cases arising under 2 U.S.C. § 192, 2 U.S.C.A. § 192 the indictments have stated the subject under inquiry. See, in addition to the examples cited above, the indictment set forth in United States v. Yellin, 287 F.2d 292, 293, n. 2 (C.A.7th Cir.); the indictment described in Davis v. United States, 269 F.2d 357, 359 (C.A.6th Cir.); and the unreported indictment in United States v. Lorch (D.C.S.D.Ohio) Cr. No. 3185 (an indictment arising out of the same series of hearings in which Russell, the petitioner in No. 8, was initially summoned to testify).
8
11 Stat. 155—156. The statute, now 2 U.S.C. §§ 192—194, 2 U.S.C.A. §§ 192—194, was enacted to supplement the established contempt power of Congress itself. Jurney v. MacCracken, 294 U.S. 125, 151, 55 S.Ct. 375, 379, 79 L.Ed. 802. The specific background of the statute's adoption is sketched in Watkins v. United States, 354 U.S., at 207, n. 45, 77 S.Ct. at 1189. See Cong.Globe, 34th Cong., 3d Sess. 405. See also id., at 403—413, 426—433, 434—445. Except for a basic change in the immunity provisions in 1862, 12 Stat. 333, the legislation has continued substantially unchanged to the present time, with only a slight modification in language in R.S. §§ 102 and 104. The only other amendment in the substantive provisions was made in 1938, 52 Stat. 942, so as to make the statute applicable to joint committees. The provision requiring grand jury indictment has been amended twice since 1857. The original legislation provided for certification only to the United States Attorney for the District of Columbia. In 1936 an amendment was made to permit certification to any United States Attorney, 49 Stat. 2041. In 1938, the provision was amended to bring it into accord with the joint committee amendment of the substantive provisions of the law.
9
In the Watkins case the Court's primary concern was not whether pertinency had had been proved at the criminal trial, but whether the petitioner had been apprised of the pertinency of the questions at the time he had been called upon to answer them. These two issues are, of course, quite different. See Deutch v. United States, 367 U.S., at 467—468, 81 S.Ct. at 1593. But identification of the subject under inquiry is essential to the determination of either issue. See Barenblatt v. United States, 360 U.S., at 123—125, 79 S.Ct. at 1091—1092.
10
See I Holdsworth, History of English Law (7th ed. 1956), 321—323; I pollock and Maitland, History of English Law (2d ed. 1909), 137—155, and Vol. II, pp. 647—653.
11
The 1872 statute became Rev.Stat. § 1025 and ultimately 18 U.S.C. (1940 ed.) § 556. The statute was repealed in the 1948 legislative reorganization of Title 18, 62 Stat. 862, because its substance was contained in Fed.Rules Crim.Proc. 52(a).
12
Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606, heavily relied upon in the dissenting opinion, is inapposite. In that case the Court held that an indictment charging the mailing of obscene material did not need to specify the particular portions of the publication which were allegedly obscene. As pointed out in Bartell v. United States, 227 U.S. 427, 431, 33 S.Ct. 383, 384, 57 L .Ed. 583, the rule established in Rosen was always regarded as a 'well recognized exception' to usual indictment rules, applicable only to 'the pleading of printed or written matter which is alleged to be too obscene or indecent to be spread upon the records of the court.' Under Roth v. United States, 354 U.S. 476, 488—489, 77 S.Ct. 1304, 1310—1311, 1 L.Ed.2d 1498, the issue dealt with in Rosen would presumably no longer arise.
13
United States v. Lamont, 2 Cir., 236 F.2d 312; Meer v. United States, 10 Cir., 235 F.2d 65; Babb v. United States, 5 Cir., 218 F.2d 538; United States v. Simplot, D.C., 192 F.Supp. 734; United States v. Devine's Milk Laboratories, Inc., D.C., 179 F.Supp. 799; United States v. Apex Distributing Co., D.C., 148 F.Supp. 365.
14
Brief for the United States, p. 26.
15
This principle enunciated in Cruikshank retains undiminished vitality, as several recent cases attest. 'Another reason (for the requirement that every ingredient of the offense charged must be clearly and accurately alleged in the indictment), and one sometimes overlooked, is to enable the court to decide whether the facts alleged are sufficient in law to withstand a motion to dismiss the indictment or to support a conviction in the event that one should be had.' United States v. Lamont, D.C., 18 F.R.D. 27, 31. 'In addition to informing the defendant, another purpose served by the indictment is to inform the trial judge what the case involves, so that, as he presides and is called upon to make rulings of all sorts, he may be able to do so intelligently.' Puttkammer, Administration of Criminal Law, 125—126. See Flying Eagle Publications, Inc., v. United States, 1 Cir., 273 F.2d 799; United States v. Goldberg, 8 Cir., 225 F.2d 180; United States v. Silverman, D.C., 129 F.Supp. 496; United States v. Richman, D.C., 190 F.Supp. 889; United States v. Callanan, D.C., 113 F.Supp. 766. See 4 Anderson, Wharton's Criminal Law and Procedure, 506; Orfield, Indictment and Information in Federal Criminal Procedure, 13 Syracuse L.Rev. 389, 392. See also Orfield, Criminal Procedure from Arrest to Appeal, 226—230.
16
In No. 128, Gojack v. United States, the petitioner filed a timely motion for a bill of particulars, requesting that he be informed of the question under subcommittee inquiry. The motion was denied.
In No. 9, Shelton v. United States, the petitioner filed a similar motion. The motion was granted, and the Government responded orally as follows:
'As to the second asking, the Government contends, and the indictment states, that the inquiry being conducted was pursuant to this resolution. We do not feel, and it is not the case, that there was any smaller, more limited inquiry being conducted.
'This committee was conducting the inquiry for the purposes contained in the resolution and no lesser purpose so that, in that sense, the asking No. 2 of counsel will be supplied by his reading the resolution.'
In the four other cases no motions for bills of particulars were filed.
17
See also Smith v. United States, 360 U.S. 1, 13, 79 S.Ct. 991, 998, 3 L.Ed.2d 1041 (dissenting opinion); Comment, 35 Mich.L.Rev. 456.
18
The federal perjury statute, 18 U.S.C. § 1621, 18 U.S.C.A. § 1621, makes it a crime for a person under oath willfully to state or subscribe to 'any material matter which he does not believe to be true.' The Government, pointing to the analogy between the perjury materiality requirement and the pertinency requirement in 2 U.S.C. § 192, 2 U.S.C.A. § 192 recognized in Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692, contends that the present cases are controlled by Markham v. United States, 160 U.S. 319, 16 S.Ct. 288, 40 L.Ed. 441, where the Court sustained a prejury indictment. But Markham is inapposite. The analogy between the perjury statute and 2 U.S.C. § 192, 2 U.S.C.A. § 192, while persuasive for some purposes, is not persuasive here, for the determination of the subject under inquiry does not play the central role in a perjury prosecution which it plays under 2 U.S.C. § 192, 2 U.S.C.A. § 192. But even were the analogy perfect Markham would still not control, for it holds only that a perjury indictment need not set forth how and why the statements were allegedly material. The Court carefully pointed out that the indictment did in fact reveal the subject under inquiry stating that 'as (the fourth count of indictment) charged that such statement was material to an inquiry pending before, and within the jurisdiction, of the commissioner of pensions; and as the fair import of that count was that the inquiry before the commissioner had reference to a claim made by the accused under the pension laws, on account of personal injuries received while he was a soldier, and made it necessary to ascertain whether the accused had, since the war, or after his discharge from the army, received an injury to the forefinger of his right hand, we think that the fourth count, although unskillfully drawn, sufficiently informed the accused of the matter for which he was indicted, and, therefore met the requirement that it should set forth the substance of the charge against him.' 160 U.S., at 325—326, 16 S.Ct. at 291. (Emphasis added.) This has been equally true of other perjury indictments sustained by the Court. See Hendricks v. United States, 223 U.S. 178, 32 S.Ct. 313, 56 L.Ed. 394; United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (the indictment in Debrow is set forth in the opinion of the Court of Appeals, 5 Cir., 203 F.2d 699, 702, n. 1).
19
See 369 U.S., p. 757, 82 S.Ct., p. 1043, supra.
*
The Subcommittee in its Report to the Senate Judiciary Committee, S.Rep. No. 131, 85th Cong., 1st Sess., p. 95, stated:
'The Communists in the United States have their own daily newspaper, the Daily Worker, and control various weekly and monthly periodicals, including Political Affairs and Masses and Mainstream. But those publications are so brazenly slanted that their propaganda value, except for certain elements of the foreign language press in this country, is sharply limited (pts. 28 and 29).
'In order to overcome this disadvantage, and for other reasons, Communists have made vigorous and sustained efforts to infiltrate the American press and radio and to entrench their members in all other forms of mass communications, where, by emphasis or omission of the written or spoken word, it may be turned to the advantage of the conspiracy.'
The Report referred to the ruling of an arbiter in a case where a paper had discharged a 'rewrite man' because he invoked the Fifth Amendment. It said that the following quotations from his opinion were 'of more than passing interest:'
'A metropolitan newspaper in America today is more than a mirror to the happenings of the day. It is a moulder of public opinion; capable of leading crusades; capable of introducing new ideas; capable of propagating truth or propaganda as it wills. By its very nature, whether it would abdicate of not, a newspaper maintains a position of leadership and responsibility in this cold war that is vital to our national security. Other industries (atomic energy, defense, et cetera) may be more vital but this fact does not impair the vital role of our press.
'Each worker performs his task in life with tools, and these tools run the gamut from an ax to a zither. The rewrite man has his tools, too. They are words. Words but express ideas and so it follows that the rewrite man works all day with ideas. This is a war of ideas. Can his position then be deemed nonsensitive? A rewrite man can select the facts he considers important as relayed to him by the reporter in the field. His is the choice of the topic sentence and the lead paragraph. His selection of words sets the tone of the article and influences, too, the choice of headline. The conclusion is irresistible that a rewrite man occupies a sensitive position on a newspaper.' Id., at 97.
The Committee concluded, 'Communists have infiltrated mass communications media in the United States, and efforts to increase such infiltration continue.' Id., at 117.
1
'Every person who having been summoned as a witness by the authority of either House of Congress, to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.' (Emphasis added.)
2
(The following abbreviations have been used to indicate where the indictment may be found: TR, the transcript of the record in this Court; JA, the joint appendix in the Court of Appeals; Cr. No. —-, the docket number in the District Court.) See Grumman v. United States, 368 U.S. 925, 82 S.Ct. 361, 7 L.Ed.2d 189 (TR, p. 2); Silber v. United States, 368 U.S. 925, 82 S.Ct. 364, 7 L.Ed.2d 189 (TR, p. 2); Hutcheson v. United States, 369 U.S. 599, 82 S.Ct. 1005, 8 L.Ed.2d 137 (TR, p. 4); Deutch v. United States, 367 U.S. 456, 81 S.Ct. 1587, 6 L.Ed.2d 963 (TR, p. 7); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (TR, p. 1); Flaxer v. United States, 358 U.S. 147, 79 S.Ct. 191, 3 L.Ed.2d 183 (TR, p. 2); Sacher v. United States, 356 U.S. 576, 78 S.Ct. 842, 2 L.Ed.2d 987 (JA, p. 2); Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (TR, p. 2); Bart v. United States, 349 U.S. 219, 75 S.Ct. 712, 99 L.Ed. 1016 (TR, p. 108); Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997 (TR, p. 4); Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (TR, p. 3); United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (TR, pp. 2—4); Knowles v. United States, 108 U.S.App.D.C. 148, 280 F.2d 696 (Cr. No. 1211—56); Watson v. United States, 108 U.S.App.D.C. 141, 280 F.2d 689 (Cr. No. 1151—54); Miller v. United States, 104 U.S.App.D.C. 30, 259 F.2d 187 (Cr. No. 164—57); La Poma v. United States, 103 U.S.App.D.C. 151, 255 F.2d 903 (Cr. No. 290—57); Brewster v. United States, 103 U.S.App.D.C. 147, 255 F.2d 899 (Cr. No. 289—57); Singer v. United States, 100 U.S.App.D.C. 260, 244 F.2d 349 (Cr. No. 1150—54); O'Connor v. United States, 99 U.S.App.D.C. 373, 240 F.2d 404 (Cr. No. 1650—53); Keeney v. United States, 94 U.S.App.D.C. 366, 218 F.2d 843 (Cr. No. 870—52); Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447 (Cr. No. 1252 51); Kamp v. United States, 84 U.S.App.D.C. 187, 176 F.2d 618 (Cr. No. 1788—50); United States v. Peck, D.C., 149 F.Supp. 238 (Cr. No. 1214—56); United States v. Hoag, D.C., 142 F.Supp. 667 Cr. No. 574—55); United States v. Fischetti, D.C. 103 F.Supp. 796 (Cr. No. 1254—51); United States v. Nelson, D.C., 103 F.Supp. 215 (Cr. No. 1796—50); United States v. Jaffe, D.C., 98 F.Supp. 191 (Cr. No. 1786—50); United States v. Raley, D.C., 96 F.Supp. 495 (Cr. No. 1748—50); United States v. Fitzpatrick, D.C., 96 F.Supp. 491 (Cr. No. 1743—50).
For a short period after Rule 7(c), Fed.Rules Crim.Proc., came into effect in 1946, vestiges of common-law pleading continued to be found in some, but not all, § 192 indictments. Compare United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906 (TR, pp. 2—3), with United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (TR, p. 2A). By 1950, however, all such indictments had come to be in statutory form.
3
Four judges dissented on other grounds.
4
The record on appeal shows that one of the grounds of attack was the indictment's failure to allege 'the nature of any matter under inquiry before said Committee.' Record on Appeal in the Court of Appeals for the Second Circuit, No. 91, Doc. 20790, p. 7.
5
This case evinces no purpose to depart from Josephson. The District Court, although dismissing the indictment on other grounds, quite evidently found the statutory 'pertinency' allegation sufficient. 18 F.R.D. 27 at 30, 37. And in affirming, the Court of Appeals, citing the Josephson case among others, stated that 'the result might well be different' had the authority of the investigating committee appeared in the indictment. 236 F.2d, at 316 (note 6). (The committee in Lamont was a Subcommittee of the Senate Committee on Government Operations whose enabling legislation the court found did not authorize investigation of 'subversive activities.') As regards the issue decided in the present cases, the following observations by Chief Judge Clark, who speaks with special authority in procedural matters, are significant (id., at 317):
'Pleading, either civil or criminal, should be a practical thing. Its purpose is to convey information succienctly and concisely. In older days the tendency was to defeat this purpose by overelaboration and formalism. Now we should avoid the opposite trend, but of like consequence, that of a formalism of generality. There seems to be some tendency to confuse general pleadings with entire absence of statement of claim or charge. (Footnote omitted.) But this is a mistake, for general pleadings, far from omitting a claim or charge, do convey information to the intelligent and sophisticated circle for which they are designed. Thus the charge that at a certain time and place 'John Doe with premeditation shot and murdered John Roe,' F.R.Cr.P., Form 2, even though of comparatively few words, has made clear the offense it is bringing before the court. (Footnote omitted.) The present indictments, however, do not show the basis upon which eventual conviction can be had; rather, read in the light of the background of facts and Congressional action, they show that conviction cannot be had.' (Emphasis supplied.)
6
That case was concerned with the 'connective reasoning' aspect of 'pertinency,' Watkins v. United States, 354 U.S. 178, 214—215, 77 S.Ct. 1173, 1193, 1 L.Ed.2d 1273, rather than the 'subject under inquiry' aspect; but it is not perceived how this can be thought to make a difference in principle.
7
This is not the first opportunity the Court has had to consider the matter. Ante, 369 U.S., p. 754, 82 S.Ct., p. 1041, note. 7.
8
The Court stated (id., at 362):
'Where the offence is purely statutory * * * it is, 'as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 1 Bishop, Crim.Proc., sect. 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him. * * * An indictment not so framed is defective, although it may follow the language of the statute.' (Emphasis supplied.)
9
The Mills and Evans cases suggest that a more lenient rule of pleading applies in misdemeanor than in felony cases. Although that distinction seems to have disappeared in the later cases, it may be noted that § 192 in terms makes this offense a misdemeanor. Note 1, supra.
10
In that case the Court spoke, doubtless by way of dictum, concerning the method of pleading 'materiality' in a perjury indictment (an element akin to 'pertinency' under § 192, Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692):
'It was not necessary that the indictment should set forth all the details or facts involved in the issue as to materiality of (the false) statement * * *. In 2 Chit.Cr.Law, 307, the author says: 'It is undoubtedly necessary that it should appear on the face of the indictment that the false allegations were material to the matter in issue. But it is not requisite to set forth all the circumstances which render them material. The simple averment that they were so will suffice.' In King v. Dowlin * * * Lord Kenyon said that it had always been adjudged to be sufficient, in an indictment for perjury, to allege generally that the particular question became a material question. * * *' 160 U.S., at 325, 16 S.Ct., at 291.
11
There, under an exception, prevailing in 'obscenity' cases, to the then general rule that in 'documentary' crimes the contents of the document must be set forth in the indictment, the Court in sustaining an indictment charging the unlawful mailing of an 'indecent' letter, only generally described, said (id., at 433 434, 33 S.Ct., at 384—385):
'The present indictment specifically charged that the accused had knowingly violated the laws of the United States by depositing on a day named, in the postoffice specifically named, a letter of such indecent character as to render it unfit to be set forth in detail, inclosed in an envelop bearing a definite address. In the absence of a demand for a bill of particulars we think this description sufficiently advised the accused of the nature and cause of the accusation against him. This fact is made more evident when it is found that this record shows no surprise to the accused in the production of the letter at the trial * * *.'
The Court suggests that Bartell and Rosen v. United States (infra, 369 U.S., p. 792, 82 S.Ct., p. 1062) are inapposite because of the special rule of pleading applicable in 'obscenity' cases. Ante, 369 U.S., p. 765, 82 S.Ct., p. 1048. However, considering that the 'apprisal' requisite of an indictment arises from constitutional requirements, this factor far from lessening the weight of these two cases adds to their authority.
12
The other cases and commentaries referred to by the Court in Note 15, ante, 369 U.S., pp. 768—769, 82 S.Ct., pp. 1049—1050, indicate nothing different.
13
It seems clear that the Court proceeded on the premise that the 'isolated excerpt' rule of Regina v. Hicklin, (1868) L.R. 3 Q.B. 360, recently rejected in Roth v. United States, 354 U.S. 476, 488—489, 77 S.Ct. 1304, 1310, 1311, 1 L.Ed.2d 1498, in favor of the 'whole book' rule, obtained, for the Court relied on United States v. Bennett, 24 Fed.Cas. p. 1093, 16 Blatchford 338, where the 'excerpt' test was applied.
14
While the 'connective reasoning' aspect of 'pertinency' is again evidently not involved in the Court's reasoning, it is appropriate to note that it is scarcely realistic to consider that issue of law as one on which the grand jury has exercised an independent judgment in determining whether an indictment should be returned. For that body may be expected, quite naturally and properly, to follow the District Attorney's advice on this score, as with any other matter of law. That the legal premises on which the grand jury acted in this respect may turn out to have been wrong could hardly vitiate the indictment itself.
15
360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653.
| 23
|
369 U.S. 689
82 S.Ct. 1114
8 L.Ed.2d 198
Petition for a Writ of Habeas Corpus for Merritt W. GREEN, II, Petitioner.
No. 312.
Argued April 9, 1962.
Decided May 21, 1962.
Merritt W. Green, Toledo, Ohio, for petitioner.
Ben Neidlinger, Toledo, Ohio, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, a member of the Ohio bar, has been held in contempt of a state court and sentenced to jail and fined. He brought this habeas corpus proceeding in the state courts challenging, inter alia, their jurisdiction to punish him for the conduct in question. He was denied relief by the Supreme Court of Ohio on a divided vote, 172 Ohio St. 269, 175 N.E.2d 59. We granted the petition for certiorari, 368 U.S. 894, 82 S.Ct. 171, 7 L.Ed.2d 92.
2
The matter in dispute arose out of a management-labor controversy. The employer sought and obtained from the state court an injunction against picketing. Petitioner had been retained by the International Longshoremen's Association to represent the local involved in this labor dispute and when advised by the clerk of the court that a petition for an injunction had been requested, he said he would be ready any time for a hearing. The injunction, however, was issued ex parte. Petitioner immediately asked for a hearing; but none was granted. At the time the ex parte injunction issued, the union had on file with the National Labor Relations Board an unfair labor practice charge, but no hearing had been held on it.
3
Petitioner, believing that under Ohio Rev.Code, 1954, § 2727.06 the restraining order was invalid because it was issued without a hearing and that the controversy was properly one for the National Labor Relations Board and not for the state court, advised the union officials that the restraining order was invalid and that the best way to contest it was to continue picketing and, if the pickets were held in contempt, to appeal or to test any order of commitment by habeas corpus. The union officials agreed on that course of action and the picketing continued.
4
Petitioner again sought to obtain a hearing on his motion to vacate the restraining order. But the judge said none could be had for a week. Thereupon petitioner and opposing counsel agreed to submit four pickets for a contempt hearing and to stipulate the facts.
5
He produced the four pickets the following day and the judge held them in contempt, giving them two days to purge themselves. At the end of the two days another hearing was held; the pickets did not purge themselves. Petitioner made clear at this hearing and at the earlier one that it was he who had advised the union to test the injunction by risking contempt. The judge held him in contempt for disobeying or resisting 'a lawful writ, process, order, rule, judgment, or command' of the court. Ohio Rev.Code, 1954, § 2705.02. 'While an opportunity was given petitioner to be heard, petitioner was not allowed to testify on his own behalf, the judge ruling that the only purpose of the hearing was to sentence petitioner.'
6
There was a hearing in the Ohio Court of Appeals when a petition for habeas corpus was filed; and at that hearing the undisputed facts showed that the employer was engaged in interstate commerce, that when the contempt order was issued an unfair labor practice charge involving the same dispute as the picketing was pending before the National Labor Relations Board, and that the picketing which had been enjoined was peaceful picketing.
7
Respondent argues that the controversy between the employer and the union involved no attempt to organize workers and no refusal of the employer to bargain but only the enforcement of a 'no-strike' clause in a collective bargaining agreement which was left by Congress either to federal courts (Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972) or to state courts. Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593.
8
Petitioner, however, argues that the unfair labor practice charge filed with the National Labor Relations Board was based on the refusal of the employer to bargain in good faith and that the collective bargaining agreement which the employer asked the state court to enforce had been signed by unauthorized agents.
9
We said in In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682, that procedural due process 'requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.'
10
Petitioner was guilty of no misconduct that fell within the category of acts which constitute contempt in open court, where immediate punishment is necessary to prevent 'demoralization of the court's authority' (id., at 275, 68 S.Ct. at 508) or the other types of contempt considered in Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609. The question was whether the state court was trenching on the federal domain. The issue thus tendered emphasizes one important function that a hearing performs. It is impossible to determine from this record whether or not the dispute was exclusively within the jurisdiction of the National Labor Relations Board under the principles of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 and Amalgamated Association of St. Elec. Ry. & Motor Coach etc. v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364. The Ohio court could not know whether it was within bounds in citing a person for contempt for violating the injunction without such a hearing. For, as Amalgamated Association of St. Elec. Ry. & Motor Coach etc. v. Wisconsin Employment Relations Board, supra, held, a state court is without power to hold one in contempt1 for violating an injunction that the state court had no power to enter by reason of federal pre-emption. Even if we assume that an ex parte order could properly issue as a matter of state law, it violates the due process requirements of the Fourteenth Amendment2 to convict a person of a contempt of this nature without a hearing and an opportunity to establish that the state court was acting in a field reserved exclusively by Congress for the federal agency. When an activity is 'arguably' subject to the National Board the States must defer to its 'exclusive competence,' 'if the danger of state interference with national policy is to be averted.' San Diego Building Trades Council v. Garmon, supra, 359 U.S. at 245, 79 S.Ct. at 780.
11
Reversed.
12
Mr. Justice FRANKFURTER and Mr. Justice WHITE took no part in the consideration or decision of this case.
13
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting in part and concurring in part.
14
I agree that this contempt conviction must be set aside, but not for the reasons given by the Court.
15
In United States v. United Mine Workers, 330 U.S. 258, 289 295, 67 S.Ct. 677, 693, 696 this Court held that disobedience of a temporary restraining order issued by a court whose claim to jurisdiction over the underlying proceeding is not frivolous may be punished as criminal contempt even if it is determined on appeal that such jurisdiction was lacking. This holding was not new, United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319; Howat v. Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550 and it has not been departed from since. It is the law of Ohio, Ohio Contractors Ass'n v. Local 894, Hod Carriers' Union, 108 Ohio App. 395, 162 N.E.2d 155. It was one ground of decision below, 172 Ohio St. 269, 274—275, 175 N.E.2d 59, 62—63, and is relied on here by respondent. However, the Court in its opinion gives only a passing glance at the Mine Workers decision.
16
The injunction petition out of which this contempt proceeding arose alleged that the posting of union pickets 'and the calling of a strike by so doing' violated the no-strike clause of a collective bargaining agreement signed by union representatives who claimed authority to contract. The assertion of state court jurisdiction to redress violation of such an agreement has recently been upheld in Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 and can hardly be deemed to have been frivolous before that decision. It does not become frivolous because an argument might be made for holding the state court powerless to issue an injunction in such a case, see Dowd Box, supra, 368 U.S. at 514, n. 8, 82 S.Ct. at 526, or because it is arguable either that no contract was concluded in this case or that the picketing did not constitute a breach of such a contract. Local 174, Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 101, 82 S.Ct. 571, 7 L.Ed.2d 593 makes clear that the rule stated in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775, ousting state courts from dealing in tort with activities even arguably subject to § 7 or § 8 of the National Labor Relations Act, 29 U.S.C.A. §§ 157, 158, does not apply when relief is sought for breach of an alleged collective bargaining agreement. State jurisdiction was upheld in Lucas Flour, although the activity there would have been protected by § 7 if not forbidden by a contract provision whose interpretation was fairly disputed, and thus was still arguably protected.
17
Accordingly, unless Mine Workers is distinguishable, the state court in this instance had power to punish petitioner for contempt even though it may ultimately be determined that it lacked jurisdiction over the injunction suit itself. The Court seeks to find such a distinction in the fact that Mine Workers involved a federal restraining order, whereas in Amalgamated Ass'n of Bus Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364 where state jurisdiction was found to be preempted by the National Labor Relations Act, a state court restraining order pendente lite was set aside. The Amalgamated case, however, did not involve an alleged breach of a labor agreement. The Mine Workers principle was neither relied on by the state court in Bus Employees nor argued here, and there is nothing in this Court's opinion in that case which suggests that the State would have been without power to reinstate the original contempt order on the basis of Mine Workers if that rule were followed in Wisconsin. Moreover, the Court's opinion in the present case does not enlighten us as to why the Mine Workers principle should not obtain in a 'preemption' case. Indeed, I would have supposed that if a federal court can preserve the status quo pending resolution of a disputed question as to its jurisdiction, the considerations in favor of allowing a state court to take such action in the same situation are at least as strong, if not stronger.
18
It is suggested that the federal policy behind preemption of state jurisdiction in Labor Board cases would be frustrated if the Mine Workers rule were to be considered applicable in a case such as this. But the policy underlying the preemption doctrine cannot well be thought stronger than the policy of the Norris-LaGuardia Act. The restraining order was issued in Mine Workers despite the commands of the Norris-LaGuardia Act—a statute specifically directed towards proscribing the issuance of injunctive orders in labor disputes.*
19
Petitioner's argument that the restraining order must be ancillary to a dispute over which the court has admitted jurisdiction scarcely serves to explain either United States v. Shipp, supra, in which the Court assumed that jurisdiction of the entire controversy depended on whether the Constitution had been violated, or Howat v. Kansas, supra, in which the jurisdiction of the state court, apart from the validity of the statute attacked, was relied on only as an alternative holding. Whether a restraining order is thus ancillary or not, respect for the orderly process of law requires obedience to it until a debatable issue of jurisdiction can be authoritatively decided. United States v. United Mine Workers, supra, 330 U.S. at 309—310, 67 S.Ct. at 703, 704 (Frankfurter, J., concurring). Petitioner would limit the rule to injunctive orders issued to preserve the status quo. Even so, the power of the court to act pending decision of the jurisdictional issue surely does not depend upon whether a strike has begun an hour before the complaint is filed or is to begin an hour later.
20
Nevertheless, I agree that for a different reason petitioner's conviction did not comport with the requirements of due process. For the record shows that the petitioner was deprived of an opportunity to prove that contempt proceedings against the pickets were agreed to among himself, his adversary, and the judge as the appropriate way to test the court's jurisdiction over the basic lawsuit. Petitioner offered to testify—and his proffered testimony appears not to have been disputed—that 'I was convinced that both the Judge and Mr. Ragan (opposing counsel) were aware that I had consented to bring these men before the court and stipulate the essential matters for the express purpose of testing the validity of the court's order and its jurisdiction over the subject matter.' Yet petitioner was denied the right to present this testimony.
21
I agree with the dissenting judge in the Ohio Court of Appeals, 47 L.R.R.M. 2230, 2233, that there is a vast difference between a defendant openly contumacious and defiant of a court order and one who disobeys the order pursuant to an understanding with court and counsel in order to test the underlying jurisdictional issues. If petitioner's contentions are true, he cannot be punished for violating the order after this agreement, and therefore he has a right to be heard. In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682.
22
On this basis I agree that the state contempt order must be set aside.
1
One of the companion cases in Amalgamated Association of St. Elec. Ry. & Motor Coach etc. v. Wisconsin Employment Relations Board, supra, was No. 438, United Gas Workers v. Wisconsin Employment Relations Board, in which a conviction for contempt for not obeying a restraining order issued by the state court (Wisconsin Employment Relations Board v. Milwaukee Gas Light Co., 258 Wis. 1, 44 N.W.2d 547) was reversed. 340 U.S. 383, 386, 399, 71 S.Ct. 359, 361, 368. The opinion was written by Chief Justice Vinson who also wrote the opinion in United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. The latter case involved a restraining order of a federal court and presented no question of pre-emption of a field by Congress where, if the federal policy is to prevail, federal power must be complete.
2
Cf. Ex parte Bradley, 7 Wall. 364, 375, 19 L.Ed. 214; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215.
*
The very argument now advanced here by the majority opinion was made by Mr. Justice Murphy, dissenting, in the Mine Workers case (330 U.S. at 341, 67 S.Ct. at 719): 'But we are acting here in the unique field of labor relations, dealing with a type of order which Congress has definitely proscribed. If we are to hold these defendants in contempt for having violated a void restraining order, we must close our eyes to the expressed will of Congress and to the whole history of equitable restraints in the field of labor disputes. We must disregard the fact that to compel one to obey a void restraining order in a case involving a labor dispute and to require that it be tested on appeal is to sanction the use of the restraining order to break strikes—which was precisely what Congress wanted to avoid.'
| 34
|
369 U.S. 698
82 S.Ct. 1095
8 L.Ed.2d 205
Laureano Maysonet GUZMAN, Petitioner,v.Ramon Ruiz PICHIRILO.
No. 358.
Argued March 27, 1962.
Decided May 21, 1962.
Harvey B. Nachman, San Juan, P.R., for petitioner.
Seymour P. Edgerton, Boston, Mass., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner, a longshoreman, was injured while unloading the M/V Carib, of Dominican registry, when a shackle broke causing one of the ship's booms to fall upon and severely injure him. He brought this suit in admiralty to recover damages resulting from the unseaworthy condition of the ship. The libel was in rem against the Carib and in personam against respondent Pichirilo, her owner The defense was that the Carib had been demised to petitioner's employer, Bordas & Company, at all times pertinent hereto, including the time when the unseaworthy condition arose. The United States District Court for the District of Puerto Rico, where the Carib lay, held against the ship and the respondent Pichirilo, finding there was no such demise, and judgment for $30,000 was awarded. The Court of Appeals reversed, holding that the Carib was under a demise to petitioner's employer, which relieved the owner of personal responsibility for unseaworthiness, and that the Carib was not liable in rem because no personal responsibility could be visited upon either the owner or the charterer.1 1 Cir., 290 F.2d 812. There being a conflict on the latter point between the Courts of Appeals, see Grillea v. United States, 232 F.2d 919 (C.A.2d Cir. 1956), we granted certiorari, 368 U.S. 895, 82 S.Ct. 176, 7 L.Ed.2d 92.2 Concluding that the District Court's findings relative to the operative facts of a demise charter party were not clearly erroneous, we hold that the Court of Appeals erred in reversing its judgment.
2
To create a demise the owner of the vessel must completely and exclusively relinquish 'possession, command, and navigation' thereof to the demisee. United States v. Shea, 152 U.S. 178, 14 S.Ct. 519, 38 L.Ed. 403 (1894); Leary v. United States, 14 Wall. 607, 20 L.Ed. 756 (1872); Reed v. United States, 11 Wall. 591, 20 L.Ed. 220 (1871). See generally Gilmore & Black, The Law of Admiralty, 215—219; Robinson, Admiralty, 593—601; Scrutton, Charterparties (16th ed., McNair & Mocatta), 4—7. It is therefore tantamount to, though just short of, an outright transfer of ownership. However, anything short of such a complete transfer is a time or voyage charter party or not a charter party at all. While a demise may bring about a change in the respective legal obligations of the owner and demisee, ibid., we need not decide here whether it relieves the owner of his traditional duty to maintain a seaworthy vessel, for under our view of the record the trial court's determination that there was no demise charter party must stand.3
3
The owner who attempts to escape his normal liability for the unseaworthiness of his vessel on the ground that he has temporarily been relieved of this obligation has the burden of establishing the facts which give rise to such relief. Thus, assuming arguendo that a demise charter party would isolate the owner from liability, the owner has the burden of showing such a charter. This burden is heavy, for courts are reluctant to find a demise when the dealings between the parties are consistent with any lesser relationship. E.g., Reed v. United States, supra, 11 Wall at 601, 20 L.Ed. 220. To establish a demise the owner in the instant case offered only the testimony of the director-partner of the claimed demisee, petitioner's employer.4 He testified that his company had complete control over and responsibility for the operation of the Carib, in consideration of which the owner was paid $200 monthly. He explained that his company's agreement with the owner was 'a kind of charter, because it does not comply with the regular provisions of a charter party. I pay the seamen, food, repair, maintenance, drydocking; which in a regular charter party are excluded.' To negate the existence of a demise the petitioner offered the deposition of the Captain of the Carib, who testified simply that he was employed by the owner. On the basis of this evidence the trial court found that the owner 'was at all times mentioned in the libel * * * in possession and control of the vessel M/V 'CARIB." In addition that court pointed out that the only witness offered to prove the existence of a demise had admitted there was no charter and that the Captain of the vessel had testified he was working for the owner, not Bordas & Co. The Court of Appeals in reversing thought the trial court had been misled as to the legal significance of the testimony and that this, as opposed to a refusal to believe the testimony of the owner's witness, had prompted it to conclude there was no charter.
4
It is true, as the Court of Appeals pointed out, that the equivocation by the witness for the owner on the nature of his company's arrangement is not inconsistent with the existence of a demise charter party, for the very elements he thought made the arrangement 'a kind of charter' are inherent in a demise charter party. See authorities cited, 369 U.S. p. 699, 82 S.Ct., p. 1096, supra. And it is equally true the fact that the Captain is employed by the owner is not fatal to the creation of a demise charter party, for a vessel can be demised complete with captain if he is subject to the orders of the demisee during the period of the demise. United States v. Shea, supra, 152 U.S. at 190, 14 S.Ct. 519, 38 L.Ed. 403; Robinson, op. cit., supra, 594—595. If we were convinced, as was the Court of Appeals, that the trial court's action was colored by a misunderstanding of such legal principles, we would have to remand, as the Court of Appeals should have, for further findings by the trial court on the credibility of the owner's witness. E.g., Kweskin v. Finkelstein, 223 F.2d 677, 679 (C.A.7th Cir. 1955). However, we have concluded that the trial court clearly disbelieved the testimony offered by respondent to establish a demise charter party. The trial judge not only found that respondent was in complete possession and control of the vessel, which in and of itself indicates disbelief in the witness' testimony, but upon the conclusion of the trial pointedly stated that he did not 'believe that Bordas is the operator of the boat.' This factual finding, rather than being tainted by an admission as to the legal relationship between the parties, appears to flow from the court's interpretation of the Captain's testimony. And to the extent this finding was based on such testimony, it cannot be said to have been influenced by an erroneous concept of a demise charter party. For as we read the record the Captain's testimony was sufficiently ambiguous for the trial court to reasonably construe it—as the court did—as saying he remained subject to the owner's control during the period of the alleged demise. Viewed in this light the testimony, of course, negates the existence of a demise. The determination of the factual content of ambiguous testimony is for the trial court, and such determination can be set aside on review only if 'clearly erroneous.' United States v. National Association of Real Estate Boards, 339 U.S. 485, 495—496, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950).
5
The 'clearly erroneous' rule of civil actions is applicable to suits in admiralty in general, McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7, 99 L.Ed. 20 (1954); see Roper v. United States, 368 U.S. 20, 23, 82 S.Ct. 5, 7 (1961), and to the existence of the operative facts of a demise charter party in particular, Gardner v. The Calvert, 253 F.2d 395, 399 (C.A.3d Cir. 1958). Under this rule an appellate court cannot upset a trial court's factual findings unless it 'is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). A refusal to credit the uncorroborated testimony of the director-partner, who obviously was not disinterested in the outcome of the litigation, would not be considered clearly erroneous. See, e.g., United States v. Oregon State Medical Society, 343 U.S. 326, 339, 72 S.Ct. 690, 698, 96 L.Ed. 978 (1952); Mayer v. Zim Israel Navigation Co., 289 F.2d 562, 563 (C.A.2d Cir. 1960). This is especially so when such testimony is prompted by leading questions as was the case here.5 A fortiori the refusal to accept such testimony, disputed as it was by the testimony of the Captain, cannot be considered clearly erroneous.
6
Since the trial court's determination that there was no demise charter party is not clearly erroneous, its holding that the owner is liable in personam and the vessel in rem must be reinstated. The case is therefore remanded to the Court of Appeals for further proceedings consistent with this opinion including the resolution of any questions it might have left unanswered on the assumption that there was no liability.
7
Reversed and remanded.
8
Mr. Justice FRANKFURTER took no part in the decision of this case.
9
Mr. Justice WHITE took no part in the consideration or decision of this case.
10
Mr. Justice HARLAN, dissenting.
11
Certiorari was granted in this case because it was thought that the legal principles underlying one aspect of the decision below were in conflict with those applied by the Second Circuit in Grillea v. United States, 232 F.2d 919.
12
The Court, however, does not resolve that conflict, nor does it decide any other question of law not already established by its past decisions. Instead, the judgment below is reversed merely because this Court disagrees with the Court of Appeals' factual estimate of the case.
13
Had the issue which the Court decides been the only question tendered by the petition for certiorari, the case could not well have been regarded as one for review by this Court. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 559, 77 S.Ct. 443, 478, 1 L.Ed.2d 493 (dissenting opinions). To reverse it now on what is essentially only an evidentiary ground is, in my view, an improvident use of the certiorari power: the Court has done no more than 'to substitute its views' for those of the Court of Appeals on purely factual issues, reached upon a fair assessment of the trial record. 352 U.S., at 562—563, 77 S.Ct. 443. Respecting the legal issues which this Court does not decide, I think that the Court of Appeals was plainly correct in deciding them as it did.
14
I would affirm.
1
Since the alleged charterer was petitioner's employer, its liability to him was statutorily limited by the Puerto Rico Workmen's Accident Compensation Act. 11 L.P.R.A. § 21.
2
After certiorari was granted in this case, the Court of Appeals for the Third Circuit, faced with a demise to the longshoreman's employer, aligned itself in toto with the position of the Court of Appeals for the First Circuit. Reed v. The Yaka, 307 F.2d 203 (1962).
3
Similarly, we do not pass on whether the vessel can be held liable in rem when neither the demisee nor the owner is personally liable.
4
Our view of the case makes it unnecessary to determine whether a demise charter party can be created without a written document.
5
At one point the judge interrupted the direct examination of the witness to point out he could not 'give any credit to a witness answering leading questions.'
| 78
|
369 U.S. 705
82 S.Ct. 1063
8 L.Ed.2d 211
Frederick C. LYNCH, Petitioner,v.Winfred OVERHOLSER, Superintendent, St. Elizabeths Hospital.
No. 159.
Argued Jan. 15, 1962.
Decided May 21, 1962.
Richard Arens, Washington, D.C., for petitioner.
Burke Marshall, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This is a habeas corpus proceeding instituted in the District Court by the petitioner, presently confined in Saint Elizabeths Hospital for the insane pursuant to a commitment under D.C.Code, § 24—301(d), to test the legality of his detention. The District Court, holding that petitioner had been unlawfully committed, directed his release from custody unless civil commitment proceedings (D.C.Code, § 21—310) were begun within 10 days of the court's order. The Court of Appeals, sitting en banc, reversed by a divided vote. 109 U.S.App.D.C. 404, 288 F.2d 388. Since the petition for certiorari raised important questions regarding the procedure for confining the criminally insane in the District of Columbia and suggested possible constitutional infirmities in § 24 301(d) as applied in the circumstances of this case, we granted the writ. 366 U.S. 958, 81 S.Ct. 1936, 6 L.Ed.2d 1252.
2
Two informations filed in the Municipal Court for the District of Columbia on November 6, 1959, charged petitioner with having violated D.C.Code, § 22—1410 by drawing and negotiating checks in the amount of $50 each with knowledge that he did not have sufficient funds or credit with the drawee bank for payment. On the same day, petitioner appeared in Municipal Court to answer these charges and a plea of not guilty was recorded. He was thereupon committed under D.C.Code, § 24—301(a) to the District of Columbia General Hospital for a mental examination to determine his competence to stand trial.1 On December 4, 1959, the Assistant Chief Psychiatrist of the Hospital reported that petitioner's mental condition was such that he was then 'of unsound mind, unable to adequately understand the charges and incapable of assisting counsel in his own defense.' The case was continued while petitioner was given treatment at the General Hospital.
3
On December 28, 1959, the Assistant Chief Psychiatrist sent a letter to the court advising that petitioner had 'shown some improvement and at this time appears able to understand the charges against him, and to assist counsel in his own defense.' This communication also noted that it was the psychiatrist's opinion that petitioner 'was suffering from a mental disease, i.e., a manic depressive psychosis, at the time of the crime charged,' such that the crime 'would be a product of this mental disease.' As for petitioner's current condition, the psychiatrist added that petitioner 'appears to be in an early stage of recovery from manic depressive psychosis,' but that it was 'possible that he may have further lapses of judgment in the near future.' He stated that it 'would be advisable for him to have a period of further treatment in a psychiatric hospital.'
4
Petitioner was brought to trial the following day in the Municipal Court before a judge without a jury. The record before us contains no transcript of the proceedings,2 but it is undisputed that petitioner, represented by counsel, sought at that time to withdraw the earlier plea of not guilty and to plead guilty to both informations. The trial judge refused to allow the change of plea, apparently on the basis of the Hospital's report that petitioner's commission of the alleged offenses was the product of mental illness.
5
At the trial one of the prosecution's witnesses, a physician representing the General Hospital's Psychiatric Division, testified, over petitioner's objection, that petitioner's crimes had been committed as a result of mental illness. Although petitioner never claimed that he had not been mentally responsible when the offenses were committed and presented no evidence to support an acquittal by reason of insanity, the trial judge concluded that petitioner was 'not guilty on the ground that he was insane at the time of the commission of the offense.'3 The court then ordered that petitioner be committed to Saint Elizabeths Hospital as prescribed by D.C.Code, § 24—301(d), which reads:
6
'(d) If any person tried upon an indictment or information for an offense, or tried in the juvenile court of the District of Columbia for an offense, is acquitted solely on the ground that he was insane at the time of its commission, the court shall order such person to be confined in a hospital for the mentally ill.'
7
There can be no doubt as to the effect of this provision with respect to a defendant who has asserted a defense of insanity at some point during the trial. By its plain terms it directs confinement in a mental hospital of any criminal defendant in the District of Columbia who is 'acquitted solely on the ground' that his offense was committed while he was mentally irresponsible, and forecloses the trial judge from exercising any discretion in this regard. Nor does the statute require a finding by the trial judge or jury, or by a medical board, with respect to the accused's mental health on the date of the judgment of acquittal. The sole necessary and sufficient condition for bringing the compulsory commitment provision into play is that the defendant be found not guilty of the crime with which he is charged because of insanity 'at the time of its commission.'4 Petitioner does not contend that the statute was misinterpreted in these respects.
8
Petitioner maintains, however, that his confinement is illegal for a variety of other reasons, among which is the assertion that the 'mandatory commitment' provision, as applied to an accused who protests that he is presently sane and that the crime he committed was not the product of mental illness, deprives one so situated of liberty without due process of law.5 We find it unnecessary to consider this and other constitutional claims concerning the fairness of the Municipal Court proceeding, since we read § 24—301(d) as applicable only to a defendant acquitted on the ground of insanity who has affirmatively relied upon a defense of insanity, and not to one, like the petitioner, who has maintained that he was mentally responsible when the alleged offense was committed.6
9
The decisions of this Court have repeatedly warned against the dangers of an approach to statutory construction which confines itself to the bare words of a statute, e.g., Rector, etc., of the Holy Trinity Church v. United States, 143 U.S. 457, 459—462, 12 S.Ct. 511, 512—513, 36 L.Ed. 226; Markham v. Cabell, 326 U.S. 404, 409, 66 S.Ct. 193, 195, 90 L.Ed. 165, for 'literalness may strangle meaning,' Utah Junk Co. v. Porter, 328 U.S. 39, 44, 66 S.Ct. 889, 892, 90 L.Ed. 1071. Heeding that principle we conclude that to construe § 24—301(d) as applying only to criminal defendants who have interposed a defense of insanity is more consistent with the general pattern of laws governing the confinement of the mentally ill in the District of Columbia, and with the congressional policy that impelled the enactment of this mandatory commitment provision, than would be a literal reading of the section. That construction finds further support in the rule that a statute should be interpreted, if fairly possible, in such a way as to free it from not insubstantial constitutional doubts. E.g., United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061; International Assn. of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1789, 6 L.Ed.2d 1141. Such doubts might arise in this case were the Government's construction of § 24—301(d) to be accepted.
I.
10
To construe § 24—301(d) as requiring a court, without further proceedings, automatically to commit a defendant who, as in the present case, has competently and advisedly not tendered a defense of insanity to the crime charged and has not been found incompetent at the time of commitment is out of harmony with the awareness that Congress has otherwise shown for safeguarding those suspected of mental incapacity against improvident confinement.
11
Thus, a civil commitment must commence with the filing of a verified petition and supporting affidavits. D.C.Code, § 21—310. This is followed by a preliminary examination by the staff of Saint Elizabeths Hospital, a hearing before the Commission on Mental Health, and then another hearing in the District Court, which must be before a jury if the person being committed demands one. D.C.Code, § 21—311. At both of these hearings representation by counsel or by a guardian ad litem is necessary. Dooling v. Overholser, 100 U.S.App.D.C. 247, 243 F.2d 825, construing D.C.Code, §§ 21—308, 21—311. The burden of proof is on the party seeking commitment, and it is only if the trier of fact is 'satisfied that the alleged insane person is insane,' that he may be committed 'for the best interests of the public and of the insane person.' D.C.Code, § 21—315.7
12
Likewise, Congress has afforded protection from improvident commitment to an accused in a criminal case who appears to the trial court 'from the court's own observations, or from prima facie evidence submitted to the court * * * (to be) of unsound mind or * * * mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense.' D.C.Code, § 24—301(a). In such circumstances preliminary commitment for a 'reasonable period' is authorized in order to permit observation and examination. If the medical report shows that the accused is of unsound mind, the court may 'commit by order the accused to a hospital for the mentally ill unless the accused or the Government objects.' (Emphasis added). In case of objection, there must be a judicial determination with respect to the accused's mental health, and it is only 'if the court shall find the accused to be then of unsound mind or mentally incompetent to stand trial' that an order for continued commitment is permissible. Hence if the accused denies that he is mentally ill, he is entitled to a judicial determination of his present mental state despite the hospital board's certification that he is of unsound mind. And it should be noted that the burden rests with the party seeking commitment to prove that the accused is 'then of unsound mind.' D.C.Code, § 24—301(a).
13
Considering the present case against this background, we should be slow in our reading of § 24—301(d) to attribute to Congress a purpose to compel commitment of an accused who never throughout the criminal proceedings suggests that he is, or ever was, mentally irresponsible.8 This is the more so when there is kept in mind the contrast between the nature of an acquittal by reason of insanity and the finding of insanity required in other kinds of commitment proceedings. In the District of Columbia, as in all federal courts, an accused 'is entitled to an acquittal of the specific crime charged if, upon all the evidence, there is reasonable doubt whether he was capable in law of committing crime.' Davis v. United States, 160 U.S. 469, 484, 16 S.Ct. 353, 356, 40 L.Ed. 499. See, e.g., Isaac v. United States, 109 U.S.App.D.C. 34, 284 F.2d 168. Compare Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. Consequently, the trial judge or jury must reach a judgment or verdict of not guilty by reason of insanity even if the evidence as to mental responsibility at the time the offense was committed raises no more than a reasonable doubt of sanity. If § 24—301(d) were taken to apply to petitioner's situation, there would be an anomalous disparity between what s 24—301(d) commands and what § 24—301(a) forbids. On the one hand, § 24—301(d) would compel posttrial commitment upon the suggestion of the Government and over the objection of the accused merely on evidence introduced by the Government that raises a reasonable doubt of the accused's sanity as of the time at which the offense was committed. On the other hand, § 24—301(a) would prohibit pretrial commitment upon the suggestion of the Government and over the objection of the accused, although the record contained an affirmative medical finding of present insanity, unless the Government is able to prove, by a preponderance of the evidence, that the accused is presently of unsound mind.
14
Of course the posttrial commitment of § 24—301(d) presupposes a determination that the accused has committed the criminal act with which he is charged, whereas pretrial commitment antedates any such finding of guilt. But the fact that the accused has pleaded guilty or that, overcoming some defense other than insanity, the Government has established that he committed a criminal act constitutes only strong evidence that his continued liberty could imperil 'the preservation of public peace.' It no more rationally justifies his indeterminate commitment to a mental institution on a bare reasonable doubt as to past sanity than would any other cogent proof of possible jeopardy to 'the rights of persons and of property' in any civil commitment. Compare note 7, supra.
15
Moreover, the literal construction urged here by the Government is quite out of keeping with the congressional policy that underlies the elaborate procedural precautions included in the civil commitment provisions. It seems to have been Congress' intention to insure that only those who need treatment and may be dangerous are confined; committing a criminal defendant who denies the existence of any mental abnormality merely on the basis of a reasonable doubt as to his condition at some earlier time is surely at odds with this policy.
16
The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successfully invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision.
II.
17
The enactment of § 24—301(d) in 1955 was the direct result of the change in the standard of criminal responsibility in the District of Columbia wrought by Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430. That decision provoked a congressional re-examination of the laws governing commitment of the criminally insane. 'Apprehension that Durham would result in a flood of acquittals by reason of insanity and fear that these defendants would be immediately set loose led to agitation for remedial legislation.' Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L.J. 905, 941 (1961). A Committee on Mental Disorder as a Criminal Defense was established by the Council on Law Enforcement in the District of Columbia to inquire into 'the substantive and procedural law of the District of Columbia bearing on mental disorder as a defense in a criminal prosecution.' S.Rep. No. 1170, 84th Cong., 1st Sess. 1 (1955); H.R.Rep. No. 892, 84th Cong., 1st Sess. 1 (1955). Among its recommendations was a mandatory commitment provision, subsequently enacted as § 24—301(d). The Committee noted that while under the then existing discretionary commitment statute9 it had been customary for the court and the appropriate executive official to order the confinement of all those who had been found not guilty solely by reason of insanity, more assurance should be given the public that those so acquitted would not be allowed to be at large until their recovery from past mental illness had been definitely established:
18
'No recent cases have come to the attention of this Committee where a person acquitted in the District of Columbia of a crime on the sole ground of insanity has not been committed to a mental hospital for treatment. Nevertheless, the Committee is of the opinion that the public is entitled to know that, in every case where a person has committed a crime as a result of a mental disease or defect, such person shall be given a period of hospitalization and treatment to guard against imminent recurrence of some criminal act by that person.' (Emphasis in the original.) 'The Committee believes that a mandatory commitment statute would add much to the public's peace of mind, and to the public safety, without impairing the rights of the accused. Where accused has pleaded insanity as a defense to a crime, and the jury has found that the defendant was, in fact, insane at the time the crime was committed, it is just and reasonable in the Committee's opinion that the insanity, once established, should be presumed to continue and that the accused should automatically be confined for treatment until it can be shown that he has recovered.' S.Rep. No. 1170, 84th Cong., 1st Sess. 13 (1955); H.R.Rep. No. 892, 84th Cong., 1st Sess. 13 (1955). (Emphasis added.)
19
It is significant to note that in finding that mandatory commitment would not result in 'impairing the rights of the accused' and that it was 'just and reasonable * * * that the insanity, once established, should be presumed to continue * * * until it can be shown that * * * (the accused) has recovered,' the Committee Report, which was embraced in the reports of the Senate and House committees on the bill, spoke entirely in terms of one who 'has pleaded insanity as a defense to a crime.' Certainly such confidence could hardly have been vouchsafed with respect to a defendant who, as in this case, had stoutly denied his mental incompetence at any time. And it is surely straining things to assume that any of the committees had in mind such cases as this, which are presumably rare.10
20
Nor is it necessary to read § 24-301(d) as an assurance that an accused who requires medical treatment will be hospitalized rather than be confined to jail. Simultaneously with the mandatory commitment provision, Congress enacted the present § 24—302, which permits transfers of mentally ill convicts from penal institutions to hospitals. Consequently, if an accused who pleads guilty is found to be in need of psychiatric assistance, he may be transferred to a hospital following sentence.
21
Finally, it is not necessary to accept the Government's literal reading of § 24—301(d) in order to effectuate Congress' basic concern, in passing this legislation, of reassuring the public. Section 24—301(a) provides a procedure for confining an accused who, though found competent to stand trial, is nonetheless committable as a person of unsound mind. That section permits the trial judge to act 'prior to the imposition of sentence or prior to the expiration of any period of probation,' if he has reason to believe that the accused 'is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him.' (Emphasis added.) The statute provides for a preliminary examination by a hospital staff, and then 'if the court shall find the accused to be then of unsound mind or mentally incompetent to stand trial, the court shall order the accused confined to a hospital for the mentally ill.'11 (Emphasis added.) This inquiry, therefore, is not limited to the accused's competence to stand trial; the judge may consider, as well, whether the accused is presently committable as a person of unsound mind.12 Since this inquiry may be undertaken at any time 'prior to the imposition of sentence,' it appears to be as available after the jury returns a verdict of not guilty by reason of insanity as before trial.
22
In light of the foregoing considerations we conclude that it was not Congress' purpose to make commitment compulsory when, as here, an accused disclaims reliance on a defense of mental irresponsibility. This does not mean, of course, that a criminal defendant has an absolute right to have his guilty plea accepted by the court. As provided in Rule 11, Fed.Rules Crim.Proc., 18 U.S.C.A., and Rule 9, D.C.Munic.Ct.Crim.Rules, the trial judge may refuse to accept such a plea and enter a plea of not guilty on behalf of the accused. We decide in this case only that if this is done and the defendant, despite his own assertions of sanity, is found not guilty by reason of insanity, s 24—301(d) does not apply. If commitment is then considered warranted, it must be accomplished either by resorting to § 24 301(a) or by recourse to the civil commitment provisions in Title 21 of the D.C.Code.
23
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
24
Reversed and remanded.
25
Mr. Justice FRANKFURTER took no part in the decision of this case.
26
Mr. Justice WHITE took no part in the consideration or decision of this case.
27
Mr. Justice CLARK, dissenting.
28
Eighty-seven years ago, Chief Justice Waite in speaking of the function of this Court said: 'Our province is to decide what the law is, not to declare what it should be. * * * If the law is wrong, it ought to be changed; but the power for that is not with us.' Minor v. Happersett, 21 Wall. 162, 178, 22 L.Ed. 627 (1875). This holding followed as long a line of cases as it preceded. Today the Court seems to me to do what this long-established rule of statutory interpretation forbids. With sophisticated frankness it admits that the District's statute1 '(b)y its plain terms * * * directs confinement in a mental hospital of any criminal defendant * * * who is 'acquitted solely on the ground' that his offense was committed while he was mentally irresponsible, and forecloses the trial judge from exercising any discretion in this regard.' Despite these 'plain terms' the Court writes into the statute an exception, i.e., it applies 'only to criminal defendants who have interposed a defense of insanity * * *.' It does this despite the fact that the petitioner here apparently made no such contention in the trial court. Indeed, though he had counsel at the time of his trial in Municipal Court on two charges of passing bad checks, he made no attempt to appeal from the refusal of the court to accept his guilty plea and its finding that he was 'not guilty on the ground that he was insane at the time of the commission of the offense.' After being committed to St. Elizabeths Hospital for treatment for some six months, he filed this habeas corpus application. Today's action may have the effect of setting him free though he makes no claim that he was sane at the time of trial or is so at this time. In fact, the last doctor's report in the record shows him to be suffering from a manic depressive psychosis from which though he 'appears to be in an early stage of recovery' it is 'possible that he may have further lapses * * *.' It further states that it 'would be advisable for him to have a period of further treatment in a psychiatric hospital.' The order today risks bringing that to an end.
I.
29
The case therefore presents the complex and challenging problem of criminal incompetency with which the people of the District of Columbia have for years been plagued. The Congress in 1955 adopted the present statute to meet what it called the 'serious and dangerous imbalance * * * in favor of the accused and against the public' which was created in part by the rule in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430 (1954). S.Rep.No.1170, 84th Cong., 1st Sess. 3 (1955). The statute, in my view, is not only designed to protect the public from the criminally incompetent but at the same time has the humanitarian purpose of affording hospitalization for those in need of treatment. It is, therefore, of the utmost importance to this community. Moreover, it has its counterpart in varying degrees in 36 of our States and in the federal system as well, many of which will be affected by this decision. In my view the Court undermines the purposes of these statutes; places a premium on pleas of guilty by defendants who were insane when they acted, made either pro se or through their attorneys; and thereby forces the conviction of innocent persons. And all of this is done in the face of the admitted 'plain terms' of the mandate of Congress under the guise that the Court's holding 'is more consistent with the general pattern of laws governing the confinement of the mentally ill in the District of Columbia.' I believe, however, that the Congress in adopting § 24—301(d) said what it meant and that it meant what it said. I regret that the Court has seen fit to repeal the 'plain terms' of this statute and write its own policy into the District's law. Especially do I deplore its suggestion of doubt as to its constitutionality. In the light of the cases this is chimerical. Finding myself with reference to the opinion like Mrs. Gummidge, 'a lone, lorn creetur' and every think (about it) goes contrairy with me,' I respectfully dissent.
II.
30
It is well to point out first what is not involved here. First, this is not a civil commitment case, although this Court attempts to force one upon the parties. In providing the safeguards of D.C.Code § 21—310 as to the ordinary civil commitment of persons claimed to be insane the Congress clearly acted in protection of those who were not charged with criminal offenses or who had never exhibited any criminal proclivities. In protecting the public from the criminally incompetent it could with reason act with less caution. See Overholser v. Leach, 103 U.S.App.D.C. 289, 291, 257 F.2d 667, 669, and Kenstrip v. Cranor, 39 Wash.2d 403, 405, 235 P.2d 467, 468. In criminal cases the person could be held in custody in any event and humanitarian principles require his hospitalization where needed. Nor are the procedures for release involved here. Petitioner has not sought his release under the statute. The procedure, however, is simple and effective, i.e., a doctor's certificate recommending release filed with the court is sufficient. If the doctor refuses such certificate, the inmate may seek to prove his sanity on habeas corpus. Here, however, no claim of sanity has been made.
31
Nor does this case involve commitment under D.C.Code § 24 301(a). The first provision of that section largely has to do with cases before trial. The accused is entitled to a speedy trial. He may be acquitted. Hence his commitment to a hospital would delay the effectuation of these rights. The Congress, therefore, provided safeguards, i.e., he might object to such a commitment and the consequent delay of his trial. But here—under § 24—301(d) the accused has already had his trial.
32
Finally, the fallacy in the Court's position is clearly apparent when in an attempt to justify its holding on practical grounds it says that an accused who pleads guilty and is sentenced may thereafter be transferred from the prison to a hospital and the assurances of hospitalization provided by § 24—301(d) thus afforded. The short of this is that if the accused pleads guilty and is sentenced he then may suffer in addition to his conviction the same fate as petitioner suffers here. With due deference, this is a most cruel position. The accused, though innocent of the crime because of insanity, pleads guilty in hopes of a short jail sentence. He then has the stigma of criminal conviction permanently on his record. During or after sentence he is transferred to the hospital where he may be released at the end of his sentence but if found not cured at that time may still be subject to further custody and treatment. D.C.Code, § 24—302; 18 U.S.C. § 4247, 18 U.S.C.A. § 4247.
III.
33
It has long been generally acknowledged that justice does not permit punishing persons with certain mental disorders for committing acts offending against the public peace and order. But insane offenders are no less a menace to society for being held irresponsible, and reluctance to impose blame on such individuals does not require their release. The community has an interest in protecting the public from antisocial acts whether committed by sane or by insane persons. We have long recognized that persons who because of mental illness are dangerous to themselves or to others may be restrained against their will in the interest of public safety and to seek their rehabilitation, even if they have done nothing proscribed by the criminal law. The insane who have committed acts otherwise criminal are a still greater object of concern, as they have demonstrated their risk to society. In an attempt to deal with these problems, Congress has enacted § 24 301(d), which requires the court to order a person who has been acquitted of a criminal offense solely on the ground that he was insane at the time of its commission, to be confined in a hospital for the mentally ill.
34
Commitment to an institution of persons acquitted of crime because of insanity is no novelty. At common law, before 1800, the trial judge had power to order detention in prison of an acquitted defendant he considered dangerous because of insanity.2 Hadfield, acquitted of attempted regicide in 1800 as insane, was remanded to an English prison because his future confinement was 'absolutely necessary for the safety of society,' 27 How.St.Tr. 1281, 1354. Parliament responded by providing for automatic commitment to a mental institution rather than prison in felony cases in which the accused was acquitted on grounds of insanity, 39 & 40 Geo. III, c. 94, and mandatory commitment has been the rule in misdemeanor cases as well in England since 1883. 46 & 47 Vict., c. 38. An accused acquitted on insanity grounds in Massachusetts was remanded to the sheriff for continued custody as early as 1810, Commonwealth v. Meriam, 7 Mass. 168, and in the District of Columbia, the judge being convinced that 'it would be extremely dangerous to permit him to be at large,' in 1835, United States v. Lawrence, 26 Fed.Cas.No.15,577. The District of Columbia Code of 1901, 31 Stat. 1189, 1340, authorized the trial judge, in his discretion and without further hearing, to forward the defendant's name to an administrator, who, in his discretion, again without hearing, might order commitment. Most defendants acquited on insanity grounds were committed under this rule.3 At the present time statutes provide for mandatory commitment of persons acquitted by reason of insanity in 12 States and the Virgin Islands as well as in England and the District of Columbia.4 Six States permit commitment in the discretion of the trial judge.5 Eighteen more provide for mandatory or discretionary commitment if the trial judge finds that the defendant's insanity continues6 or that his discharge would be dangerous to the public peace.7 In 10 States and in Puerto Rico, mandatory commitment follows a like finding by the trial jury8 or by a second jury.9 In three States standards for civil commitment must be met.10 Only Tennessee makes no provision for such cases.11 Many of these laws providing for commitment of acquitted defendants are by no means new see the tabulation in Glueck, Mental Disorder and the Criminal Law, 394—399 (1925), and with very few exceptions such laws have been upheld by state courts against constitutional attacks.12 The Model Penal Code of the American Law Institute contains a provision for mandatory commitment. ALI Model Penal Code Proposed Final Draft No. 1, § 4.08. See also comments on this section in id., Tentative Draft No. 4, p. 199. In practice, it has been said despite the varying provisions in the several jurisdictions that acquitted defendants are 'nearly always' committed. Note, 68 Yale L.J. 293.
IV.
35
The Court does not deny that petitioner was tried for an offense and acquitted solely on the ground of insanity at the time of its commission. It argues, however, that the procedure of § 24 301(d), as applied to a criminal defendant who has not pleaded insanity, is inconsistent with the whole scheme of procedural safeguards provided for commitment of other individuals to mental hospitals in the District of Columbia and therefore could not have been intended by Congress. But the procedure of § 24—301(d) applies only to defendants found not guilty solely on the ground of insanity. That is, unlike defendants committed before or during the trial, see State ex rel. Smilack v. Bushong, 159 Ohio St. 259, 111 N.E.2d 918, all persons committed under § 24—301(d) either have been found after trial to have committed the act itself, or, as here, have conceded that they committed it. It is this adjudication, or this admission, that serves to explain and, in Congress' opinion, to justify different treatment for such individuals. Overholser v. Leach, 103 U.S.App.D.C. 289, 257 F.2d 667. Whether we would have drawn this distinction is not the question; it suffices that the distinction was drawn and is not so untenable that we can say Congress could not treasonably have drawn it. And, insofar as § 24—301(a) applies also to those who have been tried and found guilty, it is no more inconsistent with mandatory commitment where the defendant has not pleaded insanity than where he has done so. In either case Congress wanted commitment if the judge found the accused insane or if the jury entertained a reasonable doubt.
V.
36
I agree with the Court that the present § 24—301(d) was the response of Congress to the decision in Durham v. United States, supra. That decision substituted for the McNaghten rule the simple question whether the 'unlawful act was the product of mental disease or mental defect.' 94 U.S.App.D.C., at 240—241, 214 F.2d, at 874—875. In amending the then § 24—301(d), Congress sought 'to protect the public against the immediate unconditional release of accused persons who have been found not responsible for a crime solely by reason of insanity * * *.' H.R.Rep. No. 892, 84th Cong., 1st Sess. 3, 13 (1955); S.Rep. No. 1170, 84th Cong., 1st Sess. 3; 101 Cong.Rec. 9258, 12229. This danger of improvident release, so crucial in the eyes of the Congress, has in fact inhibited the adoption of the Durham rule by other courts in jurisdictions where no mandatory commitment statute is available. Sauer v. United States, 241 F.2d 640 (C.A.9th Cir.); United States v. Smith, 5 U.S.C.M.A. 314, 329, 17 C.M.R. 314, 329; United States v. Currens, 3 Cir., 290 F. 2d 751, 776—777, dissenting opinion; Sobeloff, Insanity and the Criminal Law: From McNaghten to Durham, and Beyond, 41 A.B.A.J. 793, 879 (1955).
37
This is not to say, however, that the sole purpose of § 24 301(d) is commitment as a protection to the public. The policy of the law also includes assurance of rehabilitation for those so committed. Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 312, 281 F.2d 943, 947. The common law permitted an acquitted incompetent to be confined in the District of Columbia even before 1901. United States v. Lawrence, supra. The desire of the Congress to satisfy its interest in the rehabilitation of an incompetent defendant brought on the original statute authorizing commitment to a mental institution. The 1955 amendment, here under attack, was designed only to strengthen the safeguards to the public safety in the light of the intervening Durham rule. There can be no question that the interest of a free society is better served by commitment to hospitals than by imprisonment of the criminally incompetent. While, as the Court points out, transfer after confinement permits treatment during sentence, it is not mandatory, and it may be interrupted before completion and the patient set free. Almost every newspaper reports depredations of the criminally insane who unfortunately for themselves and the safety of others have been released on the public. It was the purpose of the statute to prevent this occurrence whether or not the accused pleads not guilty because of insanity. A defendant's plea neither proves nor affects his guilt or his sanity. To make the commitment procedure effective only on the defendant's option limits the statute's protection of the public, forces an unfortunate choice on attorneys appointed to represent defendants, convicts those who are innocent by reason of insanity and deprives them of the treatment afforded by a humanitarian public policy. See Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943. The Court says that this can all be done through another trial under civil commitment procedures, but this is but to disagree with the policy of Congress rather than the Court of Appeals which has upheld the statute. As mentioned, supra, the civil procedures are entirely insufficient where criminal acts are involved. The criterion of § 24—301(d)—merely whether there is a reasonable doubt that the accused was capable in law of committing the offense—is a far cry from the test of civil commitment, where it must be proven to the satisfaction of the court that the accused is actually insane. The requirement that the petitioner here go free unless civil commitment proceedings be filed and he be adjudged insane creates a serious risk that petitioner will again be turned loose on an unsuspecting public to carry on his check-writing proclivities and perhaps much worse. His is but one example that will inevitably follow in the wake of this decision today.
VI.
38
The Court disclaims the intention of granting petitioner an absolute right to plead guilty. Such a right would be contra to our concept of the fair administration of justice as exemplified in Rule 9 of the Criminal Rules of the Municipal Court of the District of Columbia, which was lifted verbatim from Rule 11 of the Federal Rules of Criminal Procedure.13 It provides explicitly that '(t)he Court may refuse to accept a plea of guilty.' And it further prohibits the acceptance of a guilty plea without the court's 'first determining that the plea is made voluntarily with undertanding of the nature of the charge.' The opinion today acknowledges that the trial judge need not accept the plea of guilty when, as here, he has in his hands a certificate from competent doctors that the petitioner was and remains insane and in need of treatment. The Court emphasizes again and again that the petitioner never at any time during his trial on the check charges suggested that 'he is, or ever was, mentally irresponsible.' Of course he did not; he preferred to go to jail for a short period. But the right of a court to refuse a plea of guilty is based on the principle that in a free society it is as important that the court make certain that the innocent go free as it is that the guilty be punished. This the court did here and decided that a just disposition of the case would not permit the entry of the plea of guilty. that the evidence of insanity was sufficient is not questioned. As this Court has often held, the judge 'is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct * * *.' Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 470, 86 L.Ed. 680, (1942). In the words of the late and revered Learned Hand, 'he is charged to see that the law is properly administered, and it is a duty which he cannot discharge by remaining inert.' United States v. Marzano, 2 Cir., 149 F.2d 923, 925. And here in the District of Columbia its court of last resort, the Court of Appeals has held that the trial judge is required to set aside jury findings of sanity where the record shows a reasonable doubt. Isaac v. United States, 109 U.S.App.D.C. 34, 284 F.2d 168. This is only further indication of his duty to seek a just disposition of every case, which justified, if it did not require, the rejection of the guilty plea here.
39
It was also unquestionably proper for the prosecutor to introduce testimony of insanity. His function, this Court said in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, is to act as 'the representative not of an ordinary party to a controversy, but of a sovereignty * * * whose interest * * * in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.'
40
The Court denies none of this. Yet, although it stresses that the purpose of § 24—301(d) was to protect the public from the release of dangerous persons acquitted as insane, and although it concedes that a defendant may be acquitted as insane without pleading insanity, the Court requires a finding of present insanity in order to commit in such a case. To me neither the words nor the policy of the law supports this; I cannot believe Congress thought only people who claim to be crazy are dangerous enough to be confined without further findings.
VII.
41
The Court did not reach the constitutional issue. Its failure so to do is, I believe, a 'disingenuous evasion,' to borrow a phrase from Mr. Justice Cardozo in Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933). The Court should not, as I have said, rewrite a statute merely to escape upholding it against easily parried constitutional objections. I would uphold the statute. I shall not go into details, however, since the Court does not deal with the issue. In short, petitioner has no constitutional right to choose jail confinement instead of hospitalization. It is said that automatic hospitalization without a finding of present insanity renders the statute invalid but, as I see it, Congress may reasonably prefer the safety of compulsory hospitalization subject to the release procedures offered by the statute and through habeas corpus. It is said that these release procedures are too strict, placing the burden on the petitioner. But it appears reasonable once a jury or a judge has found a reasonable doubt as to the sanity of a man who has admittedly passed bad checks to require a doctor's certificate to authorize release, and failing such to require proof of the doctor's error in refusing to issue it. There is no reason to believe that the doctors or, for that matter, the judge would be improperly motivated. Release is by no means illusory. In the past six years over 25% of those committed have been released. It must be remembered that here the constitutionality of § 24—301(d) is at issue, not the wisdom of its enactment. That is for Congress. So long as its choice meets due process standards it cannot be overturned. The problem which faced Congress was the reconciliation of the opportunity for release of the accused through a judicial hearing with the vital public interest, deference to the views of institutional authorities and a decent regard for the hospitalization and cure of the accused. The balance struck by Congress, in my view, meets the essential requirements of due process.
42
In any event, petitioner does not claim that he is now sane. He has made no effort to secure his release on the ground of being cured. Surely he should be required to make such an effort before asking the Court to strike down the statute on that ground. Moreover, if the burden is too heavy, rather than opening the hospital doors to all persons committed under the statute, it would be more fitting to rewrite the release procedures by shifting the burden to the hospital authorities to prove the necessity for further hospitalization. The Court has not hesitated to use a similar device in another area. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21. I would also think the Court would prefer to do this rather than create a loophole for those who seek to plead guilty. In so doing, the Court would not force the badge of criminal conviction on innocent persons but would afford them the benefit of treatment, safeguarded by entirely fair and reasonable release procedures, and at the same time afford the public protection from those unfortunates among us that know not what they do. The Court has chosen not to reverse the burden of proof; perhaps the Congress will consider doing so.
43
I dissent.
1
The record does not reveal the basis for the trial court's action.
2
Despite the absence of a trial record, the District Court made findings of fact respecting the proceedings at petitioner's trial, some of which are contested by the parties. We rely only upon those facts that were here admitted.
3
Petitioner did not appeal from this judgment.
4
Similar statutes are found in 12 States, the Virgin Islands, and in England. Compare Colo.Rev.Stat.Ann. (Supp.1957) § 39—8—4; Ga.Code Ann.1953, § 27—1503; Kan.Gen.Stat.Ann.1949, § 62 1532; Maine Pub.L.1961, c. 310; Mass.Ann.Laws 1957, c. 123, § 101 (murder or manslaughter); Mich.Stat.Ann.1954, § 28.933(3), Comp.Laws 1948, § 766.15c (murder); Minn.Stat.Ann. (Supp.1957) § 631.19; Neb.Rev.Stat.Ann.1943, § 29—2203; Nev.Rev.Stat.1955, § 175.445; N.Y.Sess.Laws 1960, c. 550, §§ 1—3; Ohio Rev.Code (Baldwin 1953) § 2945.39; Wis.Stat.1958, § 957.11; V.I.Code Ann.1957, Tit. 5, § 3637. The English procedure is found in Trial of Lunatics Act, 46 & 47 Vict., c. 38, s. 2 (1883).
Statutes under which commitment is mandatory if the trial judge or jury finds that the accused is presently insane are, of course, clearly distinguishable. The focus of the inquiry on which commitment turns is the accused's mental health as of the time of commitment, and the verdict of not guilty by reason of insanity is merely evidence bearing on that issue. Consequently, the effect of the compulsory aspect of such a commitment provision is by no means comparable to that involved in the present case. Similarly, any discretionary commitment statute presumably leaves the trial judge or jury free to find the accused presently sane and thus entitled to full liberty.
5
In essence the claim is that § 24—301(d) compels the indeterminate commitment of such a person without any inquiry as to his present sanity, and solely on evidence sufficient to warrant a reasonable doubt as to his mental responsibility as of the time he committed the offense charged. The claim is said to be buttressed when § 24—301(d) is taken in conjunction with the rigorous release-from-confinement provisions of § 24—301(e) and § 24—301(g) as construed by the Court of Appeals for the District of Columbia in Overholser v. Leach, 103 U.S.App.D.C. 289, 257 F.2d 667; Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943.
6
The defense of insanity need not, of course, be asserted by means of a formal plea. Fed.Rules Crim.Proc. 11, 18 U.S.C.A., which governs proceedings in the District Courts, permits the entry of certain enumerated pleas, not including 'not guilty by reason of insanity,' a plea which is authorized in some jurisdictions. D.C.Munic.Ct.Crim.Rule 9 is identical to Fed.Rules Crim.Proc. 11. Consequently, a defense of insanity in a criminal proceeding in the District of Columbia may be established under a general plea of not guilty. We read § 24—301(d) as making commitment mandatory whenever the defendant successfully relies, in any affirmative way, on a claim that he was insane at the time of commission of the crime of which he is accused.
7
A police officer may arrest and detain any person who appears to be of unsound mind on the belief that if such person is 'permitted to remain at large or to go unrestrained in the District of Columbia the rights of persons and of property will be jeopardized or the preservation of public peace imperiled and the commission of crime rendered probable.' D.C.Code, § 21—326. However, within 48 hours of such apprehension, the petition that is otherwise required for an involuntary commitment must be filed, and the procedural machinery which follows the filing of such a petition must be set in motion. D.C.Code, § 21—311, par. 3.
8
In eight of the 13 other American jurisdictions where statutes providing for mandatory commitment, following an acquittal by reason of insanity, are in effect, see note 4, supra, the provisions of the statutes indicate that they are to apply only if an insanity defense is interposed by the accused: Colorado ('in a trial involving the plea of not guilty by reason of insanity'); Georgia ('in all criminal trials * * * wherein an accused shall contend that he was insane'); Nebraska (accused 'may plead that he is not guilty by reason of insanity or mental derangement'); Nevada ('where on a trial a defense of insanity is interposed by the defendant'); New York ('when the defense is insanity of the defendant'); Ohio ('when a defendant pleads 'not guilty by reason of insanity"); Wisconsin ('no plea that the defendant * * * was insane * * * shall be received unless it is interposed at the time of arraignment'); Virgin Islands ('if the defense is the mental illness of the defendant'). We have not been referred to any case in the remaining American jurisdictions or in England where a mandatory commitment of this nature, following a proceeding in which the defendant did not interpose a defense of insanity, was sustained.
9
The statute then in effect provided:
'If the jury shall find the accused to be then insane, or if an accused person shall be acquitted by the jury solely on the ground of insanity, the court may certify the fact to the Federal Security Administrator, who may order such person to be confined in the hospital for the insane, and said person and his estate shall be charged with the expense of his support in the said hospital.' 59 Stat. 311. (Emphasis added.)
10
We have been told of four such cases in the District of Columbia, two arising in the Municipal Court and two in the District Court: District of Columbia v. Trembley, D.C. 28343—60; United States v. Taylor, U.S. 4774—59; United States v. Kloman, Crim. No. 383—58, —- F.Supp. —-; United States v. Strickland, Crim. No. 374—59, —- F.Supp. —-.
11
D.C.Code, § 24—301(a) provides:
'(a) Whenever a person is arrested, indicted, charged by information, or is charged in the juvenile court of the District of Columbia, for or with an offense and, prior to the imposition of sentence or prior to the expiration of any period of probation, it shall appear to the court from the court's own observations, or from prima facie evidence submitted to the court, that the accused is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense, the court may order the accused committed to the District of Columbia General Hospital or other mental hospital designated by the court, for such reasonable period as the court may determine for examination and observation and for care and treatment if such is necessary by the psychiatric staff of said hospital. If, after such examination and observation, the superintendent of the hospital, in the case of a mental hospital, or the chief psychiatrist of the District of Columbia General Hospital, in the case of District of Columbia General Hospital, shall report that in his opinion the accused is of unsound mind or mentally incompetent, such report shall be sufficient to authorize the court to commit by order the accused to a hospital for the mentally ill unless the accused or the Government objects, in which event, the court, after hearing without a jury, shall make a judicial determination of the competency of the accused to stand trial. If the court shall find the accused to be then of unsound mind or mentally incompetent to stand trial, the court shall order the accused confined to a hospital for the mentally ill.'
12
Compare 18 U.S.C. § 4244, 18 U.S.C.A. § 4244, considered in Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412, which relates only to 'mental incompetency after arrest and before trial.' By the terms of 18 U.S.C. § 4246, 18 U.S.C.A. § 4246, commitment is to last only 'until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law.'
1
§ 24—301(d), District of Columbia Code.
2
Williams, Criminal Law: The General Part (2d ed. 1961), 456; Note, Releasing Criminal Defendants Acquitted and Committed Because of Insanity: The Need for Balanced Administration, 68 Yale L.J. 293 (1958); Weihofen & Overholser, Commitment of the Mentally Ill, 24 Tex.L.Rev. 307, 328. It has been said that in most cases, nevertheless, the defendant was released. Glueck, Mental Disorder and the Criminal Law (1925), 392—393.
3
See Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L.J. 905, 941 (1961); S.Rep. No. 1170, 84th Cong., 1st Sess. 12 (1955).
4
Colo.Rev.Stat., 1957 Supp. § 39—8—4; D.C.Code 1961, § 24 301; Ga.Code Ann.1953, § 27—1503; Kan.Gen.Stat.Ann.1949, § 62 1532; Me.Laws 1961, c. 310; Mass.Gen.Laws Ann.1957, c. 123, § 101 (murder and manslaughter only; in other cases, c. 278, § 13, the trial judge may commit if satisfied the defendant is insane); Mich.Stat.Ann.1954, § 28.933(3), Comp.Laws 1948, § 766.15c (murder only; in other felony cases, 1961 Supp. § 28.967, Comp.Laws 1948, § 767.27, the trial judge shall commit if, after hearing, he determines continuing insanity); Minn.Stat.Ann.1961 Supp. § 631.19; Neb.Rev.Stat.1956, § 29—2203; Nev.Rev.Stat.1961, § 175.445; N.Y.Code of Crim.Proc. § 454, as amended by Laws 1960, c. 550; Ohio Rev.Code Ann., 1954, § 2945.39; V.I.Code Ann.1957, Tit. 5, § 3637; Wis.Stat.Ann.1958, § 957.11 ('rehearing' of present sanity and danger on request, see § 51.11).
5
Ark.Stat.Ann.1961 Supp. § 59—242 ('shall be committed * * * upon probable cause'); Conn.Gen.Stat.1961 Supp. § 54—37; Del.Code Ann.1960 Supp.Tit. 11, § 4702 (on motion of Attorney General); N.M.Stat.Ann.1953, § 41—13—3; Purdon's Pa.Stat.Ann.1930, Tit. 19, § 1351; S.C.Code 1952, § 32—927 (on acquittal or 'question' of insanity at time of act).
6
Mandatory: Ala.Code 1958 recompilation, Tit. 15, § 429; Burns' Ind.Stat.Ann.1961 Supp. § 9—1704a (or if recurrence 'highly probable'); Utah Code Ann.1953, § 77—24—15; as well as Michigan in felony cases other than murder, see note 4, supra. In Hawaii, Rev.Laws 1960 Supp. § 258—38, the burden is on the defendant to show recovery. In California, insanity is tried after it has been determined whether defendant committed the act. On a verdict of acquittal because of insanity, the defendant is committed 'unless it shall appear to the court' that he has recovered, in which case he is held until determined sane by civil procedures. Cal.Penal Code 1956, § 1026.
Discretionary: Ky.Crim.Code of Practice 1960, § 268 (after hearing); W.Va.Code Ann.1961, § 6198 (on report of two appointed experts); as well as Massachusetts in cases other than murder, see note 4, supra.
7
Mandatory: Alaska Comp.Laws Ann.1949, § 66—13—78; Ore.Rev.Stat.1961, § 136.730.
Discretionary: Fla.Stat.1961, § 919.11 (must confine or remand to friends' care); Iowa Code Ann.1950, § 785.18; N.H.Rev.Stat.Ann.1961 Supp. § 607:3; N.C.Gen.Stat.1958, § 122—84 (after hearing, shall commit if found dangerous because of mental condition, and if 'his confinement for care, treatment, and security demands it'); N.D.Century Code 1960, § 12—05—03; R.I.Gen.Laws 1956, § 26—4—7 (Governor may commit on judge's certification); S.D.Code 1960 Supp. § 34.3672; Vt.Stat.Ann.1958, Tit. 13, § 4805; Va.Code, 1960 replacement, § 19.1—239.
8
Ill.Rev.Stat.1961, c. 38, § 592 (not entirely and permanently recovered); Md.Code Ann.1957, Art. 59, § 8 (still insane); Miss.Code Ann.1956 recompilation, § 2575 (still insane and dangerous); Mo.Stat.Ann. Vernon 1961 Supp. § 546.510 (not entirely and permanently recovered); N.J.Stat.Ann.1953, § 2A:163—3 (still insane); Okl.Stat.Ann.1958, c. 22, § 1161 (dangerous to discharge); Vernon's Tex.Code Crim.Proc.Ann.1961 Supp. Art. 932b, § 1 (still insane); Wash.Rev.Code 1951, § 10.76.040 (still insane or danger or recurrence).
9
Idaho Code 1948, § 19—2320 (still insane); Mont.Rev.Code Ann.1947, § 94—7420 (same); Puerto Rico Laws Ann.1956, Tit. 34, § 823 (same). In all three jurisdictions the trial judge has discretion whether or not to call the second jury.
10
In Arizona, Rules of Crim.Proc.1956, Rule 288, 17 A.R.S., and in Wyoming, Stat. 1957, § 7—242, a civil commitment petition is required to be filed. In Louisiana, Rev.Stat.1950, § 28:59, the acquitted defendant may be committed by the trial court 'in the manner provided' for civil commitment in § 28:53. Presumably this requires compliance with the substantive standards as well as the procedures of civil commitment.
11
Apparently in Tennessee there is likewise no common-law power to confine the acquitted insane. See Dove v. State, 50 Tenn. 348, 373 (dictum). But there appears to be no obstacle to instituting civil proceedings under Tenn.Code Ann.1961 Supp. § 33 502, and 1955 ed., § 33—512.
12
In re Slayback, 209 Cal. 480, 288 P. 769; Bailey v. State, 210 Ga. 52, 77 S.E.2d 511; In re Clark, 86 Kan. 539, 121 P. 492, 39 L.R.A., N.S., 680; In re Beebe, 92 Kan. 1026, 142 P. 269; Hodison v. Rogers, 137 Kan. 950, 22 P.2d 491. 88 A.L.R. 1080; State v. Burris, 169 La. 520, 125 So. 580; People v. Dubian, 304 Mich. 363, 8 N.W.2d 99, 145 A.L.R. 886; People ex rel. Peabody v. Chanler, 133 App.Div. 159, 117 N.Y.S. 322; In re Brown, 39 Wash. 160, 81 P. 552, 1 L.R.A.,N.S., 540; State v. Saffron, 146 Wash. 202, 262 P. 970; see also Gleason v. Inhabitants of West Boylston, 136 Mass. 489; Yankulov v. Bushong, 80 Ohio App. 497, 77 N.E.2d 88. Similar procedures were struck down in Brown v. Urquhart, 139 F. 846 (C.C.W.D.Wash.); In re Boyett, 136 N.C. 415, 48 S.E. 789, 67 L.R.A. 972; and Underwood v. People, 32 Mich. 1. Brown v. Urquhart required a hearing on present sanity as a matter of statutory construction and was overturned by the state court in In re Brown, supra. Boyett and Underwood relied in part on the abolition of habeas corpus, not present here, and the Michigan court has since allowed a commitment statute with more adequate release provisions to stand, People v. Dubina, supra.
13
Rule 9 of the Criminal Rules of the Municipal Court of the District of Columbia reads:
'A defendant may plead not guilty, guilty or, with the consent of the Court nolo contendere. The Court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the Court refuses to accept a plea of guilty, or if a defendant corporation fails to appear, the Court shall enter a plea of not guilty.'
| 01
|
369 U.S. 672
82 S.Ct. 1080
8 L.Ed.2d 187
The HANOVER BANK, Executor, et al., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE.
No. 224.
Argued Feb. 27, 1962.
Decided May 21, 1962.
Theodore Tannenwald, Jr., New York City, for petitioners.
Stephen J. Pollak, Washington, D.C., for respondent.
Mr. CHIEF JUSTICE WARREN delivered the opinion of the Court.
1
Despite the seemingly complex factual composition of the two cases consolidated herein,1 this opinion deals with a relatively simple question of taxation: The extent to which a taxpayer may deduct, through amortization under the Internal Revenue Code of 1939, the premium he has paid in purchasing corporate bonds. In 1953, prior to December 1, the petitioners purchased fully taxable utility bonds at a premium above maturity value.2 The bonds were callable at the option of the issuer at either a general or special call price, and at either price they were callable upon 30 days' notice. The term 'general call price' is used to designate the price at which the issuer may freely and unconditionally redeem all or any portion of the outstanding bonds from its general funds. The lower, 'special call price,' is the amount the issuer would pay if the bonds were redeemed with cash from certain specially designated funds.3
2
In computing net income, the 1939 Code permits a taxpayer to deduct, through amortization, the premium he has paid in purchasing corporate bonds.4 Section 125 of the Code, set forth in pertinent part in the margin,5 provides that the amount of bond premium to be amortized 'shall be determined * * * with reference to the amount payable on maturity or on earlier call date.' Pursuant to this Section, the petitioners elected to claim on their 1953 income tax returns a deduction for bond premium amortization computed with reference to the special redemption price and to the 30-day redemption period appearing in the bond indentures. The respondent did not question the petitioners' use of the 30-day amortization period, but he disallowed the computation based upon the special redemption price and recomputed the amount of bond premium using the higher, general call price.6 The Court of Appeals for the Second Circuit affirmed the Tax Court's orders sustaining the Commissioner's deficiency determination. 289 F.2d 69. However, in cases presenting the identical legal issue, the Courts of Appeals for the Third (Evans v. Dudley, 295 F.2d 713) and Sixth (United States v. Parnell, 272 F.2d 943, affirming D.C., 187 F.Supp. 576) Circuits allowed amortization taken with reference to the special redemption prices.7 To resolve this conflict, we granted certiorari. 368 U.S. 812, 82 S.Ct. 53, 7 L.Ed.2d 21.
3
Bond premium is the amount a purchaser pays in buying a bond that exceeds the face or call value of the bond.8 When a bond sells at a premium, it is generally because the interest it bears exceeds the rate of return on similar securities in the current market. For the right to receive this higher interest rate the purchaser of a bond pays a premium price when making the investment. However, interest is taxable to the recipient, and when a premium has been paid the actual interest received is not a true reflection of the bond's yield, but represents in part a return of the premium paid. It was to give effect to this principle that Congress in 1972 enacted Section 125 of the 1939 Code,9 which for the first time provided for amortization of bond premium for tax purposes.
4
By providing that amortization could be taken with reference to the 'amount payable on maturity or on earlier call date' (emphasis added), Congress recognized that bonds are generally subject to redemption by the issuer prior to their maturity. In electing to allow amortization with reference to the period the bonds might actually be outstanding, Congress, through the words to which we have lent emphasis, provided that a bondholder could amortize bond premium with reference to any date named in the indenture at which the bond might be called.10
5
A bond indenture might contain any number of possible call dates, but we need only to be concerned in this case with the issuer's right to call the bonds on 30 days' notice at either a general or special call price. Unquestionably, both general and special redemption provisions have a legitimate, though distinct, business purpose, and both were in widespread use well before the enactment of Section 125. The general call price is employed when the issuer finds that the current rate of interest on marketable securities is substantially lower than what it is paying on an outstanding issue. The issuer may then call the bonds at the general price and, following redemption, may refinance the obligation at the lower, prevailing rate of interest. In contrast, the provision for special funds from which bonds may be redeemed at the special call price, serves an entirely different purpose. Bond indentures normally require the issuer to protect the underlying security of the bonds by maintaining the mortgaged property and by insuring that its value is not impaired. This is done, first, through the maintenance of a special sinking fund, to which the issuer is obligated to make periodic payments, and, secondly, through the maintenance of other special funds, to which are added the proceeds from a sale or destruction of mortgaged property, or from its loss through a taking by eminent domain.11 Although the issuer normally reserves an alternative to maintaining these special funds with cash, circumstances may dictate that the only attractive option from a business standpoint is the payment of cash and, to prevent the accumulation of this idle money, the indenture provides that the issuer may use it to redeem outstanding bonds at a special call price. It is evident that just as prevailing market conditions may render redemption at the special call price unlikely at a given time, the same or different market conditions may also cause redemption at the general call price equally unlikely,12 particularly in an expanding industry such as utilities. During the period the petitioners held their bonds, none were called at either price, but the risk incurred that they would be called was present with equal force as to both the general and special call provisions. The market for bonds reflects that risk, and the Section of the Code we are asked to interpret takes cognizance of that market reality.
6
Turning to the specific problem in the instant case, we are asked to determine whether the special price at which the bonds may be redeemed by the issuer from the limited sinking fund account and from the other special funds made available upon the occurrence of certain contingent events (see note 3, supra) is an 'amount payable * * * on earlier call date' within the meaning of Section 125. For the reasons stated below, we answer this question affirmatively and hold that there is no basis either in the statute, in the legislative history, or in the respondent's own prior interpretations of the statute, for a distinction between reference to a general or special call price in computing amortizable bond premiums under the 1939 Code.
7
First, we note that the Government has made certain important concessions which lighten considerably the task before us. It does not question the right of the petitioners to amortize bond premium with reference to the 30-day call period, nor does it question amortization to the general call price.13 In addition, in requesting a rule which will apply to the 'generality of cases,'14 it professes to have abandoned its argument below which became the rationale of the Second Circuit in holding against the taxpayers, that the statute calls for an analysis into the 'likelihood of redemption' before amortization at a special call price will be permitted.15 Moreover, the Government does not contend that the transactions entered into by the petitioners were a sham without any business purpose except to gain a tax advantage.16 Rather, the Government's position in this Court is that before an 'earlier call date' is established with reference to the special call price, the taxpayer must show that 'there is an ascertainable date on which the issuer will become entitled to redeem (a particular) bond at its option.' The Government asserts that it is not enough that the issuer has the right to call some bonds at the special redemption price. Rather, '(i)t must have the right to call the particular bond for which amortization is claimed, for otherwise that bond has no 'earlier call date." The Government's primary reason for urging this interpretation of Section 125 is that the statute has created a tax loophole of major dimension that should be closed short of allowing the deduction sought in this case. While this assertion might have been persuasive in securing enactment of the amendments to the statute made subsequent to the time the transactions involved here took place (see discussion, infra), it may not, of course, have any impact upon our interpretation of the statute under review. We are bound by the meaning of the words used by Congress, taken in light of the pertinent legislative history. In neither do we find support for the Government's interpretation.
8
This Court was first called upon to construe Section 125 in 1950 in Commissioner v. Korell, 339 U.S. 619, 70 S.Ct. 905, 94 L.Ed. 1108. The taxpayer there had purchased bonds at a premium which reflected in large part not a higher yield of interest, but, rather, the attractiveness of the convertible feature of the bonds. The bonds were callable on 30 days' notice and the taxpayer amortized the premium accordingly. In contesting the deduction thus taken, the Commissioner contended that Section 125, in establishing a deduction for 'amortizable bond premium,' did not include premium paid for the conversion privilege. In rejecting this contention, the Court made it clear that Section 125 was not enacted solely to enable a bondholder to amortize 'true premium,' but that by 'the clear and precise avenue of expression actually adopted by the Congress' (339 U.S., at 625, 70 S.Ct. at 908), the legislation was adopted with 'no distinctions based upon the inducements for paying the premium.' (Id., at 628, 70 S.Ct. at 910).
9
The decision in Korell led to congressional re-examination of Section 125, and the enactment of Section 217(a) of the Revenue Act of 1950 (64 Stat. 906), which eliminated amortization of bond premiums attributable to a conversion feature. However, response to the Korell decision was specifically limited to the convertible bond situation; no further change was made in the statute which would reflect on its interpretation in the case before us.17
10
In 1954, in enacting the successor to Section 125, Section 171 of the Internal Revenue Code of 1954 (26 U.S.C., 1958 ed., 26 U.S.C.A.), Congress again took cognizance of the tax benefit in question, and determined to eliminate the abuses inherent in permitting amortization with reference to 30-day call periods. Thus Congress further narrowed the loophole by providing that the premium on callable bonds could be amortized to the nearest call date only if such date was more than three years from the date of the original issue of the securities. With particular relevance to the Government's argument in the instant case, it is worthy of note that Congress understood the operation of the statute to the taxpayer's advantage, but limited correction of the abuses inherent in it to elimination of the quick write-off. The House Report accompanying H.R. 8300, which was to become the Internal Revenue Code of 1954, stated (H.R.Rep. No. 1337, 83d Cong., 2d Sess. 26), U.S.Code Cong. and Adm. News 1954, p. 4051:
11
'Under existing law, a bond premium may be amortized with reference to the amount payable on maturity or on earlier call date, at the election of the taxpayer. In the case of bonds with a very short call feature, such as those providing for call at any time on 30-day notice, the entire premium may be deducted in the year of purchase.
12
'This provision has given rise to tax-avoidance opportunities. Substantial bond issues have been made subject to a 30-day call, permitting the purchaser to take an immediate deduction for the entire premium against ordinary income. Where the call feature is nominal or inoperative this permits a deduction for an unreal loss, since the market value of the bonds ordinarily remains fairly stable over considerable periods. The bonds may then be resold after 6 months subject to longterm capital gain treatment. The writeoff of premium thus affords a gratuitous tax saving, equivalent to the conversion of a corresponding amount of ordinary income into capital gain. This process may be repeated indefinitely.
13
'To curb this type of abuse, your committee's bill provides that the premium on callable bonds may be amortized to the nearest call date only if such date is more than 3 years from the date of original issue of the securities. This provision will apply only to bonds issued after January 22, 1954, and acquired after January 22, 1954.' (Emphasis added.)
14
Not only did Congress fail to make the distinction between general and special call provisions urged by the respondent, but it expressly recognized that deductions could be taken under Section 125 with reference to a call date that was 'nominal or inoperative.' It did not remotely imply that a showing of a right to call all or any part of the outstanding bonds was necessary for operation of the statute. Furthermore, the change that it did adopt was to operate prospectively only.
15
Finally, in 1958, by adoption of Section 13 of the Technical Amendments Act of 1958, 72 Stat. 1610, Congress eliminated entirely the right to amortize to call date, permitting amortization to be taken only over the period to maturity.18 Again, the legislative change was prospective only and again no distinction was made with respect to general and special call dates or with respect to a right to call all or a part of the outstanding bonds.
16
Persuasive evidence that we are correct in our interpretation of Section 125, as bolstered by its legislative history and subsequent amendments, may be found in the respondent's own prior construction of the statute. As is true with the language of the statute itself, the respondent's regulations contained not the slightest hint of the distinction urged upon us here. The Commissioner defined 'earlier call date' in Treas.Reg. 118, § 39.125(b)—2 (see note 10, supra) as any call date prior to maturity, specified in the bond. The regulations in effect in 1953 give no support to the Government's present contention that the taxpayer must show an unconditional right in the issuer to call the outstanding bonds at a particular redemption price before amortization with reference to that price would be permitted. Furthermore, although the petitioners are not entitled to rely upon unpublished private rulings which were not issued specifically to them,19 such rulings do reveal the interpretation put upon the statute by the agency charged with the responsibility of administering the revenue laws. And, because the Commissioner ruled, in letters addressed to taxpayers requesting them, that amortization with reference to a special call price was proper under the statute,20 we have further evidence that our construction of allowable bond premium amortization is compelled by the language of the statute.21
17
A firmly established principle of statutory interpretation is that 'the words of statutes—including revenue acts—should be interpreted where possible in their ordinary, everyday senses.' Crane v. Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 1051, 91 L.Ed. 1301.22 The statute in issue here, in plain and ordinary language, evidences a clear congressional intent to allow amortization with reference to any call date named in the indenture. Under such circumstances we are not at liberty, notwithstanding the apparent tax-saving windfall bestowed upon taxpayers, to add to or alter the words employed to effect a purpose which does not appear on the face of the statute. Moreover, the legislative history, too, is persuasive evidence that the statute, as it appeared in 1953 when these deductions were taken, allowed the deduction refused these taxpayers. Simply stated, an informed Congress enacted Section 125 with full realization of the existence and operation of special call provisions, but chose not to make any distinction between them and general redemption rights. Neither did the Commissioner. Nevertheless, the Government now urges this Court to do what the legislative branch of the Government failed to do or elected not to do. This, of course, is not within our province.23
18
The judgment is reversed.
19
Mr. Justice FRANKFURTER took no part in the decision of this case.
20
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
We have before us two cases which originated in the Tax Court: Estate of Gourielli v. Commissioner, 33 T.C. 357, and Goldfarb v. Commissioner, 33 T.C. 568. The cases were consolidated on appeal to the Court of Appeals for the Second Circuit, and one opinion was filed by that court. Estate of Gourielli v. Commissioner, 289 F.2d 69. Petitioner Hanover Bank is the executor of the estate of Mr. Gourielli, who passed away since the commencement of this action.
2
The bonds involved in the Gourielli case were Appalachian Electric Power Company, 1981 series, bonds, which decedent and his wife purchased for $117.50 per $100 face value, and which were later sold for $115.50. The bonds in Goldfarb were Arkansas Power & Light Company, 30-year, Eighth Series, bonds, which petitioners purchased at an average price of 110.50 per $100 face amount, and which were later sold at an average price of $105.40. The total purchases in the two cases were $540,000 (Gourielli) and $500,000 (Goldfarb) face amount; the purchase prices were paid in cash in both cases.
3
In addition to a 'sinking fund' into which the indenture required Appalachian to deposit during each annual period an amount (in cash or property additions of an equipment amount) equal to one per cent of the bond issue, the special funds in the case of the Appalachian bonds were: (1) a release property and insurance fund, to which deposits were required only upon a loss by casualty or by a release of mortgaged properties securing the bonds; and (2) a maintenance fund, to which deposits were required only when Appalachian failed to expend a stated percentage of its revenues on maintenance or improvements. The special funds in the case of the Arkansas bonds were made up from the same type contributions as above, plus additions made to an eminent domain fund if and when mortgaged property was taken from the company by eminent domain proceedings.
4
Internal Revenue Code of 1939 (26 U.S.C., 1952 ed., 25 U.S.C.A.):
'Sec. 23. Deductions from gross income.
'In computing net income there shall be allowed as deductions:
'(v) (as added by § 126(a), Revenue Act of 1942, c. 619, 56 Stat. 798) Bond premium deduction.—In the case of a bondholder, the deduction for amortizable bond premium provided in section 125.'
5
This Section was also added by the Revenue Act of 1942, supra, note 4, § 126(b). Entitled 'Amortizable Bond Premium,' it reads in pertinent part as follows:
'(a) General rule.—In the case of any bond, as defined in subsection (d), the following rules shall apply to the amortizable bond premium (determined under subsection (b)) on the bond for any taxable year beginning after December 31, 1941:
'(b) Amortizable bond premium.—
'(1) Amount of bond premium. For the purposes of paragraph (2), the amount of bond premium, in the case of the holder of any bond, shall be determined with reference to the amount of the basis (for determining loss on sale or exchange) of such bond, and with reference to the amount payable on maturity or on earlier call date, with adjustments prior to reflect unamortized bond premium with respect to the bond, for the period prior to the date as of which subsection (a) becomes applicable with respect to the taxpayer with respect to such bond. * * *
'(2) Amount amortizable. The amortizable bond premium of the taxable year shall be the amount of the bond premium attributable to such year.
'(3) Method of determination. The determinations required under paragraphs (1) and (2) shall be made—
'(A) in accordance with the method of amortizing bond premium regularly employed by the holder of the bond, if such method is reasonable;
'(B) in all other cases, in accordance with regulations prescribing reasonable methods of amortizing bond premium, prescribed by the Commissioner with the approval of the Secretary.'
6
At the time of the deduction in Gourielli, the schedule appearing in the Appalachian bond indenture provided that the bonds could be redeemed at a general call price of 105 3/8 or a special call price of 102 3/8. The petitioners' basis was $117.50 (see supra, note 2) and therefore amortization of premium with reference to the two prices would result in a deduction of $64,831.07 or $83,056.07, respectively. The difference in these amounts, $18,225.00, was the amount disallowed by the respondent. By a similar recomputation with reference to the schedule of redemption prices appearing in the Arkansas bond indenture (105.36 as compared to 101.36), the respondent reduced the deduction in Goldfarb by $27,175.00. The actual tax deficiency in each case was considerably less ($14,200.92 and $14,708.16, respectively), of course, because disallowance of the larger premium resulted in a corresponding increase in the petitioners' basis which had been adjusted pursuant to Section 113(b)(1)(H) of the Code when the premium was amortized. This increase in basis resulted in a smaller short-term capital gain (the petitioners held the bonds less than six months) than had been reported by petitioners in their 1953 returns. The decrease in tax due on the capital gain was offset against the amount of amortization disallowed to arrive at the petitioners' actual tax deficiencies in issue here.
7
In addition to the Third and Sixth Circuits' cases, the First and Seventh Circuits have also allowed deductions of bond premium amortization taken with reference to special redemption prices. In the First Circuit: Fabreeka Products Co. v. Commissioner, 294 F.2d 876, vacating and remanding 34 T.C. 290; Sherman v. Commissioner, 34 T.C. 303; and Friedman v. Commissioner, 34 T.C. 456. In the Seventh Circuit: Gallun v. Commissioner, 297 F.2d 455, reversing 1960 P—H T.C. Memo. Dec. 60,104; and Maysteel Products, Inc. v. Commissioner, 7 Cir., 287 F.2d 429, reversing 33 T.C. 1021. In each of these cases the taxpayer had purchased bonds at a premium, amortized that premium to the special call price, and thereafter made a distribution of the bonds which entailed a double tax deduction (e.g., a gift to charity). In each case the Court of Appeals allowed the double deduction. Although the precise issue presented in the instant case was not expressly decided in these latter cases, due to the fact that the Commissioner did not choose to challenge the use of the special call price as against the general call price for determining the amount of the premium, the allowance of the amortization to the special redemption price impliedly places the First and Seventh Circuits in accord with the Third and Sixth Circuits.
8
See the authorities collected in Commissioner v. Korell, 339 U.S. 619, 627, n. 10, 70 S.Ct. 905, 94 L.Ed. 1108. The Court in Korell, a case also involving an interpretation of Section 125 (see discussion, 369 U.S., pp. 682—683, 82 S.Ct., pp. 1086—1087, infra), concluded (339 U.S., at 627, 70 S.Ct. at 909): 'We adopt the view that 'bond premium' in § 125 means any extra payment, regardless of the reason therefor * * *.'
9
Commissioner v. Korell, 339 U.S. 619, 621, 70 S.Ct. 905, 94 L.Ed. 1108. See 1 Hearings before House Committee on Ways and Means on Revenue Revision of 1942, 77th Cong., 2d Sess. 90 (1942). The House Committee noted the recommendation made in the hearings that the difference between yield and the actual interest rate be treated as a return of capital and not as a capital loss (H.R.Rep. No. 2333, 77th Cong., 2d Sess. 47):
'Under existing law, bond premium is treated as a capital loss sustained by the owner of the bond at the time of disposition or maturity and periodical payments on the bond at the nominal or coupon rate are treated in full as interest. The want of statutory recognition of the sound accounting practice of amortizing premium leads to incorrect tax results which in many instances are so serious that provision should be made for their avoidance.'
However, in rejecting the Government's argument in Korell, supra, that Congress intended to confine the deduction only to premium paid for a higher-than-market interest rate, the Court stated (339 U.S., at 626—627, 70 S.Ct. at 909):
'At most, (the Commissioner's) presentation of the legislative materials suggests that Congress may have had the bondholder who was seeking a higher interest rate primarily in mind; but it does not establish that Congress in fact legislated with reference to him exclusively. (Citation omitted.) Congress, and the Treasury in advising Congress, may well have concluded that the best manner of affording him relief and correcting the inequitable treatment of boundholders whose interest receipts were taxable, was to define the scope of the amendment by reference to types of bonds rather than causes of premium payment.'
10
Congress' intent in this regard was expressly noted by the respondent in enacting Treas.Reg. 118, § 39.125(b)—2:
'Callable and convertible bonds. (a) The fact that a bond is callable * * * does not, in itself, prevent the application of section 125. * * * The earlier call date may be the earliest call date specified in the bond as a day certain, the earliest interest payment date if the bond is callable at such date, the earliest date at which the bond is callable at par, or such other call date, prior to maturity, specified in the bond as may be selected by the taxpayer. * * *'
11
See generally Evans v. Dudley, 3 Cir., 295 F.2d 713, 715; Estate of Gourielli v. Commissioner, 2 Cir., 289 F.2d 69, 73; Parnell v. United States, D.C., 187 F.Supp. 576, 577, aff'd, 6 Cir., 272 F.2d 943. See also Badger, Investment Principles and Practices (5th ed. 1961), 46—47, 114—115, 129; I Dewing, Financial Policy of Corporations (5th ed. 1953), 186—188, 247—249.
12
Hence, the occurrence of a redemption at the general call price is dependent upon one set of events—the fluctuation in the interest market; the occurrence of a redemption at the special call price is dependent upon another set of events—deposits in the sinking fund by the issuer over one or more years, takings by governmental agencies through eminent domain, destruction of the property securing the bonds, etc. In either case, the events could happen. In fact, the petitioners point out in their brief here that in recent years more bonds have been called at the special redemption price than at the general price. See also Evans v. Dudley, 3 Cir., 295 F.2d 713, 716.
13
Allowing a 30-day amortization period is in accord with the decision of the Court in Korell where, although the point was not argued by the Government, the taxpayer had amortized the premium with reference to the 30-day period provided in the incenture. In its brief in the instant case the Government states:
'* * * (W)e concede that it is now too late to challenge the amortization of the premium on bonds subject to an unlimited right of redemption on 30 days' notice. Not only has the consistent administrative practice, culminating in a published ruling, been to allow such amortization, but Congress, in narrowing such deductions in the 1954 Code and prohibiting them entirely after 1957, expressly acknowledge that the prior law permitted that treatment. * * * Accordingly, we did not challenge in the lower courts and do not challenge here petitioners' right to amortization of the premium on the basis of the general right of the issuer to redeem the bonds at any time upon 30 days' notice.'
See also Int.Rev.Rul. 56—398, 1956—2 Cum.Bull. 984, where the respondent, in a published ruling, acquiesced in a 30-day amortization period under the 1939 Code.
14
This concession also conforms to the pronouncement in Korell (339 U.S., at 625, 70 S.Ct. at 908): 'Congress was legislating for the generality of cases.' See also Evans v. Dudley, 3 Cir., 295 F.2d 713, 716; Parnell v. United States, D.C., 187 F.Supp. 576, 579, 6 Cir., aff'd, 272 F.2d 943.
15
The Court of Appeals for the Second Circuit stated (289 F.2d 69, 74): 'We do not think that * * * in § 125 of the Code * * * (Congress) meant to include an amount payable on a call at a 'special' price of which there was no real possibility during the period for which the amortization is being taken and the deduction claimed.' And (289 F.2d, at 72): '* * * (T)he hazard that any significant number of petitioners' bonds would be called during (the) period was infinitesimal.' In so holding, the Court accepted the Government's argument below that '(t)he taxpayer is not entitled to compute his amortizable bond premium deduction * * * with reference to the 'special' call price * * * because * * * such a call was so contingent and unlikely that there was no realistic call date at the 'special' call price * * *.'
In contrast, the Government states in its brief here: '* * * (O)ur position is not dependent upon the particular market conditions or the actual probabilities that a right of redemption will be exercised * * *. (W)e agree with petitioners that the question * * * should not be dependent upon a finding in each case of the actual 'likelihood' that any particular redemption right will be exercised.' As to the futility in attempting to apply a 'likelihood of redemption' standard, see note 12, supra.
16
Cf. Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed.2d 128; Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596.
17
The legislation simply provided:
'In no case shall the amount of bond premium of a convertible bond include any amount attributable to the conversion features of the bond.'
Where, as in the case before us, a question of interpretation of Section 125 is presented lying outside the scope of the 1950 Amendment, Korell retains its full vitality. Thus, it is worth noting that the Government's 'right to call' approach advocated in the case at bar would result in a sub silentio overruling of Korell to the extent that in the latter case the right of the bondholder to exercise his conversion option at any time through the expiration of the notice period of a call defeated completely the issuer's 'right' to call and redeem even a single bond. In the instant case, however, neither party disputes the fact that at least some of the bonds could have been called at the special price and that if the issuer exercised his right so to call them the bondholder would have had no choice but to turn over the bonds and forfeit the premium paid for them.
18
The 1958 Amendment literally permits amortization to an earlier call date but only if it results in a smaller amortization deduction than would amortization to maturity, which, for all practical purposes, effectively eliminates the privilege of calling to an earlier call date.
19
See, e.g., Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 265—266, n. 5, 78 S.Ct. 691, 696, 2 L.Ed.2d 743; Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746; Helvering v. New York Trust Co., 292 U.S. 455, 467 468, 54 S.Ct. 806, 809, 78 L.Ed. 1361.
20
For example, the record in the instant case contains a copy of the following letter to a taxpayer from the respondent's office (we quote the relevant portion):
'Gentlemen:
'The Appalachian Electric Power Company 3 3/4% bonds, 1981 Series, are callable in whole or in part through May of 1953 at 105 5/8. They are also callable for sinking fund through funds derived from maintenance or sale of property at any time upon thirty days notice through May 31, 1954 at 102 3/8. You request to be advised whether the above-mentioned ruling of July 30, 1952, means that such bonds may be amortized down to 102 3/8 or whether it means that they can only be amortized down to 105 5/8 through May of 1953.
'Upon the basis of the information on file in this office, it is the opinion of this office that a taxpayer electing to amortize the premium on Appalachian Electric Power Company bonds in accordance with section 125 of the Code may use the regular redemption price of 105 5/8 or the special redemption price of 102 3/8.
'Very truly yours, (etc.) * * *'
21
In 1956, three years after the deductions in the present case were taken, the Commissioner—reversing the position he had previously and uniformly adhered to in a series of private rulings for the first time announced that amortization of bond premium under Section 125 of the 1939 Code was to be limited to premium in excess of a general call price and could not include premium in excess of a lower special call price, except where an actual call was made at the latter price. Int.Rev.Rul. 56—398, 1956—2 Cum.Bull. 984.
22
See also Commissioner v. Korell, 339 U.S. 619, 627—628, 70 S.Ct. 905, 909, 94 L.Ed. 1108; Lang v. Commissioner, 289 U.S. 109, 111, 53 S.Ct. 534, 77 L.Ed. 1066; Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560, 52 S.Ct. 211, 213, 76 L.Ed. 484.
23
We believe the Court of Appeals for the First Circuit was correct when it said in Fabreeka Products Co. v. Commissioner, 294 F.2d 876, 879: 'Granting the government's proposition that these taxpayers have found a hole in the dike, we believe it one that calls for the application of the Congressional thumb, not the court's.' See also Evans v. Dudley, 295 F.2d 713, 715, where the Third Circuit quotes this language from Judge Aldrich's opinion in Fabreeka Products.
| 1112
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369 U.S. 663
82 S.Ct. 1089
8 L.Ed.2d 180
J. W. FREE, Petitioner,v.James F. BLAND.
No. 205.
Argued March 21, 1962.
Decided May 21, 1962.
W. Graham Claytor, Jr., Washington, D.C., for petitioner.
Olin P. McWhirter, Greenville, Tex., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
We are called upon to determine whether the Treasury Regulations creating a right of survivorship in United States Savings Bonds pre-empt any inconsistent Texas community property law by virtue of the Supremacy Clause, Article VI, Clause 2, of the Constitution.
2
The petitioner is the widower of Mrs. Mary Ida Free, and the respondent is her son by a previous marriage. Mr. and Mrs. Free were domiciled in Texas. That State follows the community property system; except in certain instances not here material, all property acquired by either spouse during marriage belongs to the community of the husband and wife.1 Property purchased with community property retains a community character. See Love v. Robertson, 7 Tex. 6. Although each spouse owns an undivided one-half interest in the community property, the husband is the sole authorized manager.2 During the years 1941 to 1945, petitioner Free, using community property, purchased several United States Savings Bonds, series 'E' and 'F'. The bonds were all issued to 'Mr. or Mrs.' Free. Under the Treasury Regulations promulgated under 31 U.S.C. § 757c(a), 31 U.S.C.A. § 757c(a) which govern bonds issued in that form, when either co-owner dies, 'the survivor will be recognized as the sole and absolute owner.' 31 CFR § 315.61. After Mrs. Free passed away in 1958, this controversy arose between the husband, who claimed exclusive ownership by operation of the Treasury Regulations, and the son, who, as the principal beneficiary under his mother's will, claimed an interest in the bonds by virtue of the state community property laws. Respondent son demanded either one-half of the bonds or reimbursement for the loss of Mrs. Free's community half interest in the bonds which was converted into petitioner's separate property by operation of the federal regulations.
3
In order to resolve the controversy, petitioner Free filed suit in the District Court of Upshur County, Texas, against the respondent individually and as the executor of Mrs. Free's estate. Respondent Bland filed a counterclaim. On the petitioner's motion for summary judgment, the trial court awarded full title to the bonds to the petitioner by virtue of the federal regulations but awarded reimbursement to the respondent by virtue of the state community property laws, making the bonds security for payment. The petitioner appealed to the Court of Civil Appeals. That court affirmed the trial court's award of full title to the petitioner but reversed the award of reimbursement to the respondent,3 relying upon Smith v. Ricks, 159 Tex. 280, 318 S.W.2d 439, in which unconditional effect was given to the survivorship provisions of the federal regulations governing savings bonds.
4
While respondent's writ of error was pending in the Supreme Court of Texas, that court overruled the Ricks case in Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565. After holding that married couples in Texas would not be permitted to agree to any survivorship provision with regard to community property, the court dismissed the argument that the Supremacy Clause would compel recognition of the survivorship provisions in United States Savings Bonds with:
5
'It is clear that the Federal regulations do not override our local laws in matters of purely private ownership where the interests of the United States are not involved. Bank of America National Trust & Savings Ass'n v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93.' 161 Tex., at 577, 342 S.W.2d, at 570.
6
Subsequently, respondent Bland's writ of error was granted, and the Supreme Court of Texas, acting under the authority of the Hilley case, reversed the Court of Civil Appeals and reinstated the judgment of the trial court in a per curiam opinion. Bland v. Free, 162 Tex. 72, 344 S.W.2d 435. We granted certiorari. 368 U.S. 811, 82 S.Ct. 50, 7 L.Ed.2d 21.
7
The Supreme Court of Texas' interpretation of the Supremacy Clause is not in accord with controlling doctrine. The relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail. Article VI, Clause 2. This principle was made clear by Chief Justice Marshall when he stated for the Court that any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield. Gibbons v. Ogden, 9 Wheat. 1, 210—211, 6 L.Ed. 23. See Franklin National Bank v. New York, 347 U.S. 373, 74 S.Ct. 550, 98 L.Ed. 767; Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424; Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165. Thus our inquiry is directed toward whether there is a valid federal law, and if so, whether there is a conflict with state law.
8
Article I, Section 8, Clause 2 of the Constitution delegates to the Federal Government the power '(t)o borrow Money on the credit of the United States.' Pursuant to this grant of power, the Congress authorized the Secretary of the Treasury, with the approval of the President, to issue savings bonds in such form and under such conditions as he may from time to time prescribe, subject to certain limitations not here material. 31 U.S.C. § 757c(a), 31 U.S.C.A. § 757c(a).4 Cf. United States v. Sacks, 257 U.S. 37, 42 S.Ct. 38, 66 L.Ed. 118. Exercising that authority, the Secretary of the Treasury issued savings bonds under regulations which provided, inter alia, that the co-owner of a savings bond issued in the 'or' form who survives the other co-owner 'will be recognized as the sole and absolute owner' of the bond, 31 CFR § 315.61,5 and that '(n)o judicial determination will be recognized which would * * * defeat or impair the rights of survivorship conferred by these regulations,' 31 CFR § 315.20.6 The Treasury has consistently maintained that the purpose of these regulations is to establish the right of survivorship regardless of local state law,7 and a majority of the States which have considered the problem have recognized this right.8 The respondent, however, contends that the purpose of the regulations is simply to provide a convenient method of payment.9 This argument depends primarily on the distinction between stating that the surviving co-owner will 'be recognized as' the sole owner and stating that the surviving co-owner will 'be' the sole owner. This distinction is insubstantial. The clear purpose of the regulations is to confer the right of survivorship on the surviving co-owner. Thus, the survivorship provision is a federal law10 which must prevail if it conflicts with state law. See Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424.
9
The success of the management of the national debt depends to a significant measure upon the success of the sales of the savings bonds. The Treasury is authorized to make the bonds attractive to savers and investors.11 One of the inducements selected by the Treasury is the survivorship provision, a convenient method of avoiding complicated probate proceedings. Notwithstanding this provision, the State awarded full title to the co-owner but required him to account for half of the value of the bonds to the decedent's estate. Viewed realistically, the State has rendered the award of title meaningless. Making the bonds security for the payment confirms the accuracy of this view. If the State can frustrate the parties' attempt to use the bonds' survivorship provision through the simple expedient of requiring the survivor to reimburse the estate of the deceased co-owner as a matter of law, the State has interfered directly with a legitimate exercise of the power of the Federal Government to borrow money.
10
Bank of America Trust & Savings Ass'n v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93, relied upon by the court below, does not support the result reached. The Court in that case held that, in the absence of any federal law, the application of state law to determine the liability of a converter of Federal Home Owners' Loan Corporation bonds was permissible, because the litigation between the two private parties there did not intrude upon the rights and the duties of the United States, the effect on the only possible interest of the United States—the floating of securities—being too speculative to justify the application of a federal rule. That doctrine clearly does not apply when the State fails to give effect to a term or condition under which a federal bond is issued, as the Court there noted. 'Federal law of course governs the interpretation of the nature of the rights and obligations created by the Government bonds themselves.' 352 U.S. at 34, 77 S.Ct. at 122.
11
We hold, therefore, that the state law which prohibits a married couple from taking advantage of the survivorship provisions of United States Savings Bonds merely because the purchase price is paid out of community property must fall under the Supremacy Clause.
12
Our holding is supported by Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398. There the Congress made clear its intent to allow a serviceman to select the beneficiary of his own government life insurance policy regardless of state law, even when it was likely that the husband intended to deprive his wife of a right to share in his life insurance proceeds, a right guaranteed by state law. But the regulations governing savings bonds do not go that far. While affording purchasers of bonds the opportunity to choose a survivorship provision which must be recognized by the States, the regulations neither insulate the purchasers from all claims regarding ownership nor immunize the bonds from execution in satisfaction of a judgment.12 The Solicitor General, appearing as amicus curiae, acknowledges that there is an exception implicit in the savings bond regulations, including the survivorship provision, so that federal bonds will not be a 'sanctuary for a wrongdoer's gains.'13 With this, we agree. The regulations are not intended to be a shield for fraud and relief would be available in a case where the circumstances manifest fraud or a breach of trust tantamount thereto on the part of a husband while acting in his capacity as manager of the general community property. However, the doctrine of fraud applicable under federal law14 in such a case must be determined on another day, for this issue is not presently here. On the record before us, no issue of fraud was or could properly have been decided by the court below on summary judgment. There was no direct allegation of fraud in the counterclaim. Other allegations which in some circumstances might have a bearing on the subject were controverted and therefore can only be resolved by a trial on the merits. Accordingly, the judgment is reversed and the case is remanded for proceedings not inconsistent with this opinion.
13
Reversed and remanded.
14
Mr. Justice FRANKFURTER took no part in the decision of this case.
15
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
Vernon's Tex.Civ.Stat., Art. 4619. See Tex.Const., Art. XVI, § 15, Vernon's Ann.St; Vernon's Tex.Civ.Stat., Arts. 4613 4627. Property acquired by gift, devise or descent is separate property. Vernon's Tex.Civ.Stat., Arts. 4613—4614. Also, community property partitioned in the manner provided in Vernon's Tex.Civ.Stat., Art. 4624a, becomes separate property. See generally Huie, Commentary on the Community Property Law of Texas, 13 Vernon's Tex.Civ.Stat. 1.
2
Vernon's Tex.Civ.Stat., Art. 4619. See Huie, supra, note 1, at 39. The wife may have managerial power over the 'special' community comprised of her income and the income from her separate property. See Bearden v. Knight, 149 Tex. 108, 228 S.W.2d 837. Blevins, Recent Statutory Changes in the Wife's Managerial Powers, 38 Tex.L.Rev. 55.
3
337 S.W.2d 805 (Tex.Civ.App.).
4
'The Secretary of the Treasury, with the approval of the President, is authorized to issue, from time to time, through the Postal Service or otherwise, United States savings bonds and United States Treasury savings certificates, the proceeds of which shall be available to meet any public expenditures authorized by law, and to retire any outstanding obligations of the United States bearing interest or issued on a discount basis. The various issues and series of the savings bonds and the savings certificates shall be in such forms, shall be offered in such amounts, subject to the limitation imposed by section 757b of this title, and shall be issued in such manner and subject to such terms and conditions consistent with subsections (b)—(d) of this section, and including any restrictions on their transfer, as the Secretary of the Treasury may from time to time prescribe.'
5
'If either coowner dies without the bond having been presented and surrendered for payment or authorized reissue, the survivor will be recognized as the sole and absolute owner. Thereafter, payment or reissue will be made as though the bond were registered in the name of the survivor alone * * *.'
6
'No judicial determination will be recognized which would give effect to an attempted voluntary transfer inter vivos of a bond or would defeat or impair the rights of survivorship conferred by these regulations upon a surviving coowner or beneficiary, and all other provisions of this subpart are subject to this restriction. Otherwise, a claim against an owner or coowner of a savings bond and conflicting claims as to ownership of, or interest in, such bond as between coowners or between the registered owner and beneficiary will be recognized, when established by valid judicial proceedings, upon presentation and surrender of the bond, but only as specifically provided in this subpart.'
7
See, e.g., Statement of Treasury Department on Rights of Surviving Coowners and Beneficiaries of Savings Bonds, dated July 5, 1945, and fifth revision, dated October 1, 1958; Letter from the Acting Assistant General Counsel of the Treasury to the Attorney General of Missouri, June 9, 1941; Treasury Department Circular No. 530, 1935.
8
See, e.g., Lee v. Anderson, 70 Ariz. 208, 218 P.2d 732; Stephens v. First National Bank of Nevada, 65 Nev. 352, 196 P.2d 756.
9
See, e.g., Decker v. Fowler, 199 Wash. 549, 92 P.2d 254, 131 A.L.R. 961. In this case the Government participated as amicus curiae in support of an application for rehearing, urging that the court had erroneously construed the regulations.
10
Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 77 S.Ct. 257, 1 L.Ed.2d 231; Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611; United States v. Sacks, 257 U.S. 37, 42 S.Ct. 38, 66 L.Ed. 118; United States v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930.
11
31 U.S.C. § 757c(a), 31 U.S.C.A. § 757c(a). See note 4, supra.
12
31 CFR §§ 315.20—315.23. See note 6, supra.
13
Brief for the United States as amicus curiae, p. 21. See also id., pp. 26—28.
14
See, e.g., Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743; Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838.
| 910
|
370 U.S. 1
82 S.Ct. 1125
8 L.Ed.2d 292
J. L. ENOCHS, District Director of Internal Revenue, Petitioner,v.WILLIAMS PACKING & NAVIGATION CO., Inc.
No. 493.
Argued April 18, 1962.
Decided May 28, 1962.
Rehearing Denied June 25, 1962.
See 370 U.S. 965, 82 S.Ct. 1579.
Louis F. Oberdorfer, Washington, D.C., for petitioner.
George E. Morse, Gulfport, Miss., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
Fearing that the District Director of Internal Revenue for Mississippi would attempt to collect allegedly past due social security and unemployment taxes for the years 1953, 1954 and 1955, respondent, in late 1957, brought suit in the District Court, maintaining that it was not liable for the exactions and seeking an injunction prohibiting their collection. The District Director, petitioner herein, made no objection to the issuance of a preliminary restraining order but resisted a permanent injunction, asserting that the provisions of § 7421(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7421(a) barred any such injunctive proceeding. That section provides:
2
'Except as provided in sections 6212(a) and (c), and 6213(a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.'
3
The exception for Tax Court proceedings created by §§ 6212(a) and (c) and 6213(a), 26 U.S.C.A. §§ 6212(a, c), 6213(a) was not applicable because that body is without jurisdiction over taxes of the sort here in issue. Nevertheless, on July 14, 1959, the court, relying upon Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422, permanently enjoined collection of the taxes on the ground that they were not, in fact, payable and because collection would destroy respondent's business. 176 F.Supp. 168. On June 14, 1961, the Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 291 F.2d 402. We granted certiorari to determine whether the case came within the scope of this Court's holding in Nut Margarine which indicated that § 7421(a) was not, in the 'special and extraordinary facts and circumstances' of that case,1 intended to apply.2 368 U.S. 937.
4
Respondent corporation (hereinafter referred to as Williams) is engaged in the business of providing trawlers to fishermen who take shrimp, oysters and fish off the Louisiana and Mississippi coasts. It is the Government's position that these fishermen are the corporation's employees within the meaning of §§ 1426(d)(2) and 1607(i) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.), 26 U.S.C.A. §§ 1426(d)(2) 1607(i), and §§ 3121(d)(2) and 3306(i) of the Internal Revenue Code of 1954, 26 U.S.C.A. §§ 3121(d)(2), 3306(i). These sections specifically adopt the common-law test for ascertaining the existence of the employer-employee relationship. As stated in United States v. Silk, 331 U.S. 704, 716, 67 S.Ct. 1463, 1469, 91 L.Ed. 1757, 'degrees of control, opportunities for profit or loss, investment in facilities, permanency of relation and skill required * * * are important for decision (under these statutes).' If, under the involved circumstances of this case, the fishermen were employees, respondent Williams is admittedly liable for social security and unemployment taxes for the years in question.3
5
The following facts, material to the question of the existence of the employment relationship, were established. Williams provided its boats to captains which it selected; they employed their own crews and could fire them at will, but the relationship between respondent corporation and the fishermen was not ordinarily of short duration. The catch was generally sold to Williams which in turn resold it to the DeJean Packing Co., a partnership closely allied to Williams both by reason of integrated operation and substantially identical ownership. The proceeds, after the deduction of expenses, were divided among the captain, the crew and the boat. Williams received an additional share if it supplied the nets and rigging. It extended credit to the captains and made it possible for them to obtain credit elsewhere, and if a trip was unsuccessful and if the captain or crew members no longer continued to operate a boat, Williams absorbed the loss.
6
With respect to the existence of a recognized right of control by the employer, as might be expected, the testimony was in conflict. Petitioner introduced evidence to show that Williams could effectively refuse ice to boats and thus determine whether they would go out, that the boats' times of return were sometimes directed by the respondent corporation, that it could dictate the nature of the catch, and that permission was needed to sell the catch to someone other than respondent. And petitioner pointed out that both respondent and its fishermen had for other purposes represented that an employer-employee relationship existed.4 On the other hand, the District Court here found, and the respondent now asserts, that the corporation was wholly without any right of control.
7
Attempting to establish a basis for equitable jurisdiction, the corporation maintains that it will be thrown into bankruptcy if required to pay the entire assessment of $41,568.57. It is undisputed that Williams itself is without available funds in this amount, but the Government suggests that respondent has denuded itself of assets in anticipation of its tax liability, that DeJean's assets should be considered as belonging to respondent, and that, in any event, the respondent corporation may pay the assessment for a single quarter and then sue for a refund.
8
The object of § 7421(a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. In Miller v. Standard Nut Margarine Co., supra, this Court was confronted with the question whether a manufacturer of 'Southern Nut Product' could enjoin the collection of federal oleomargarine taxes on its goods. Prior to the assessment in issue three lower federal court cases had held that similar products were nontaxable and, by letter, the collector had informed the manufacturer that 'Southern Nut Product' was not subject to the tax. This Court found that '(a) valid oleomargarine tax could by no legal possibility have been assessed against (the manufacturer), and therefore the reasons underlying (§ 7421(a)) apply, if at all, with little force.'5 Noting that collection of the tax 'would destroy its business, ruin it financially and inflict loss for which it would have no remedy at law,' the Court held that an injunction could properly issue. Id., 284 U.S. at 510—511, 52 S.Ct. at 264. The courts below seem to have found that Nut Margarine decides that § 7421(a) does not bar suit for an injunction against the collection of taxes not due if the legal remedy is inadequate. We cannot agree.
9
The enactment of the comparable Tax Injunction Act of 1937, 50 Stat. 738, now, as amended, 28 U.S.C. § 1341, 28 U.S.C.A. § 1341, forbidding the federal courts to entertain suits to enjoin collection of state taxes 'where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State,' throws light on the proper construction to be given § 7421(a). It indicates that if Congress had desired to make the availability of the injunctive remedy against the collection of federal taxes not lawfully due depend upon the adequacy of the legal remedy, it would have said so explicitly. Its failure to do so shows that such a suit may not be entertained merely because collection would cause an irreparable injury, such as the ruination of the taxpayer's enterprise. This is not to say, of course, that inadequacy of the legal remedy need not be established if § 7421(a) is inapplicable; indeed, the contrary rule is well established. See, e.g., Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447; Miller v. Standard Nut Margarine Co., supra; Dows v. Chicago, 11 Wall. 108, 20 L.Ed. 65. However, since we conclude that § 7421(a) bars any suit for an injunction in this case, we need not determine whether the taxpayer would suffer irreparable injury if collection were effected.
10
The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assurred of prompt collection of its lawful revenue.6 Nevertheless, if it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, under the Nut Margarine case, the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in 'the guise of a tax.' Id., 284 U.S. at 509, 52 S.Ct. at 263.
11
We believe that the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed. To require more than good faith on the part of the Government would unduly interfere with a collateral objective of the Act—protection of the collector from litigation pending a suit for refund. And to permit even the maintenance of a suit in which an injunction could issue only after the taxpayer's nonliability had been conclusively established might 'in every practical sense operate to suspend collection of the * * * taxes until the litigation is ended.' Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407. Thus, in general, the Act prohibits suits for injunctions barring the collection of federal taxes when the collecting officers have made the assessment and claim that it is valid. Snyder v. Marks, 109 U.S. 189, 194, 3 S.Ct. 157, 160, 27 L.Ed. 901.
12
The record before us clearly reveals that the Government's claim of liability was not without foundation. Therefore, we reverse the judgment of the Court of Appeals and remand the case to the District Court with directions to dismiss the complaint.
13
Reversed.
14
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
1
284 U.S., at 511, 52 S.Ct. at 264.
2
See also Hill v. Wallace, 259 U.S. 44, 62, 42 S.Ct. 453, 455, 66 L.Ed. 822; Allen v. Regents, 304 U.S. 439, 449, 58 S.Ct. 980, 82 L.Ed. 1448.
3
See § 1410, 1939 Code, 26 U.S.C.A. § 1410, and § 3111, 1954 Code, 26 U.S.C.A. § 3111 (social security taxes); § 1600, 1939 Code, 26 U.S.C.A. § 1600, and § 3301, 1954 Code, 26 U.S.C.A. § 3301 (unemployment taxes).
Presumably the exceptions for fishing operations created by §§ 1426(b)(15) and 1607(c)(17) of the 1939 Code and by § 3306(c)(17) of the 1954 Code do not apply because the vessels here involved were of more than 10 net tons.
4
For instance, during World War II, respondent represented that the fishermen were employees for the purpose of securing occupational deferments for them. And in the course of a prior antitrust litigation, instituted against a union to which respondent's fishermen belonged, the union defended against the charge of price fixing on the ground that its members were employees. The Government, curiously, successfully maintained that an employment relationship did not exist. See Gulf Coast Shrimpers & Oystermans Assn. v. United States, 236 F.2d 658 (C.A.5th Cir. 1956).
5
Id., 284 U.S. at 510, 52 S.Ct. at 263.
The product in issue was made only with vegetable oils. The pertinent taxing statute defined 'oleomargarine' as '(a)ll substances heretofore known as oleomargarine, oleo, oleomargarine-oil, butterine, lardine, suine, and neutral; all mixtures and compounds of oleomargarine, oleo, oleomargarine-oil, butterine, lardine, suine, and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef-fat, suet, lard, lard-oil, vegetable-oil annotto (a coloring material), and other coloring matter, intestinal fat, and offal fat made in imitation or semblance of butter, or when so made, calculated or intended to be sold as butter or for butter.' 24 Stat. 209. The assessment was based on the argument that the statutory reference to 'vegetable-oil annotto' was meant to bring products made with vegetable oil within the definition. The Court held that the Act was obviously designed to include only vegetable-oil coloring used in conjunction with animal-fat products; in fact, after the tax year involved, the statute had been amended to bring vegetable-oil products within the definition. See 46 Stat. 1022.
6
Compare S.Rep. No. 1035, 75th Cong., 1st Sess. 2, concerning 28 U.S.C. § 1341, 28 U.S.C.A. § 1341:
'The existing practice of the Federal courts in entertaining tax-injunction suits against State officers makes it possible for foreign corporations doing business in such States to withold from them and their governmental subdivisions, taxes in such vast amounts and for such long periods of time as to seriously disrupt State and county finances. The pressing needs of these States for this tax money is so great that in many instances they have been compelled to compromise these suits, as a result of which substantial portions of the tax have been lost to the States without a judicial examination into the real merits of the controversy.'
| 1112
|
370 U.S. 9
82 S.Ct. 1099
8 L.Ed.2d 298
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.WASHINGTON ALUMINUM COMPANY.
No. 464.
Argued April 10, 1962.
Decided May 28, 1962.
Dominick L. Manoli, Washington, D.C., for petitioner.
Robert R. Bair, Baltimore, Md., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The Court of Appeals for the Fourth Circuit, with Chief Judge Sobeloff dissenting, refused to enforce an order of the National Labor Relations Board directing the respondent Washington Aluminum Company to reinstate and make whole seven employees whom the company had discharged for leaving their work in the machine shop without permission on claims that the shop was too cold to work in.1 Because that decision raises important questions affecting the proper administration of the National Labor Relations Act,2 we granted certiorari.3
2
The Board's order, as shown by the record and its findings, rested upon these facts and circumstances. The respondent company is engaged in the fabrication of aluminum products in Baltimore, Maryland, a business having interstate aspects that subject it to regulation under the National Labor Relations Act. The machine shop in which the seven discharged employees worked was not insulated and had a number of doors to the outside that had to be opened frequently. An oil furnace located in an adjoining building was the chief source of heat for the shop, although there were two gas-fired space heaters that contributed heat to a lesser extent. The heat produced by these units was not always satisfactory and, even prior to the day of the walkout involved here, several of the eight machinists who made up the day shift at the shop had complained from time to time to the company's foreman 'over the cold working conditions.'4
3
January 5, 1959, was an extraordinarily cold day for Baltimore, with unusually high winds and a low temperature of 11 degrees followed by a high of 22. When the employees on the day shift came to work that morning, they found the shop bitterly cold, due not only to the unusually harsh weather, but also to the fact that the large oil furnace had broken down the night before and had not as yet been put back into operation. As the workers gathered in the shop just before the starting hour of 7:30, one of them, a Mr. Caron, went into the office of Mr. Jarvis, the foreman, hoping to warm himself but, instead, found the foreman's quarters as uncomfortable as the rest of the shop. As Caron and Jarvis sat in Jarvis' office discussing how bitingly cold the building was, some of the other machinists walked by the office window 'huddled' together in a fashion that caused Jarvis to exclaim that '(i)f those fellows had any guts at all, they would go home.' When the starting buzzer sounded a few moments later, Caron walked back to his working place in the shop and found all the other machinists 'huddled there, shaking a little, cold.' Caron then said to these workers, '* * * Dave (Jarvis) told me if we had any guts, we would go home. * * * I am going home, it is too damned cold to work.' Caron asked the other workers what they were going to do and, after some discussion among themselves, they decided to leave with him. One of these workers, testifying before the Board, summarized their entire discussion this way: 'And we had all got together and thought it would be a good idea to go home; maybe we could get some heat brought into the plant that way.'5 As they started to leave, Jarvis approached and persuaded one of the workers to remain at the job. But Caron and the other six workers on the day shift left practically in a body in a matter of minutes after the 7:30 buzzer.
4
When the company's general foreman arrived between 7:45 and 8 that morning, Jarvis promptly informed him that all but one of the employees had left because the shop was too cold. The company's president came in at approximately 8:20 a.m. and, upon learning of the walkout, immediately said to the foreman, '* * * if they have all gone, we are going to terminate them.' After discussion 'at great length' between the general foreman and the company president as to what might be the effect of the walkout on employee discipline and plant production, the president formalized his discharge of the workers who had walked out by giving orders at 9 a.m. that the affected workers should be notified about their discharge immediately, either by telephone, telegram or personally. This was done.
5
On these facts the Board found that the conduct of the workers was a concerted activity to protest the company's failure to supply adequate heat in its machine shop, that such conduct is protected under the provision of § 7 of the National Labor Relations Act which guarantees that 'Employees shall have the right * * * to engage in * * * concerted activities for the purpose of collective bargaining or other mutual aid or protection,'6 and that the discharge of these workers by the company amounted to an unfair labor practice under § 8(a)(1) of the Act, which forbids employers 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.'7 Acting under the authority of § 10(c) of the Act, which provides that when an employer has been guilty of an unfair labor practice the Board can 'take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act,'8 the Board then ordered the company to reinstate the discharged workers to their previous positions and to make them whole for losses resulting from what the Board found to have been the unlawful termination of their employment.
6
In denying enforcement of this order, the majority of the Court of Appeals took the position that because the workers simply 'summarily left their place of employment' without affording the company an 'opportunity to avoid the work stoppage by granting a concession to a demand,' their walkout did not amount to a concerted activity protected by § 7 of the Act.9 On this basis, they held that there was no justification for the conduct of the workers in violating the established rules of the plant by leaving their jobs without permission and that the Board had therefore exceeded its power in issuing the order involved here because § 10(c) declares that the Board shall not require reinstatement or back pay for an employee whom an employer has suspended or discharged 'for cause.'10
7
We cannot agree that employees necessarily lose their right to engage in concerted activities under § 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of § 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. To compel the Board to interpret and apply that language in the restricted fashion suggested by the respondent here would only tend to frustrate the policy of the Act to protect the right of wrokers to act together to better their working conditions. Indeed, as indicated by this very case, such an interpretation of § 7 might place burdens upon employees so great that it would effectively nullify the right to engage in concerted activities which that section protects. The seven employees here were part of a small group of employees who were wholly unorganized. They had no bargaining representative and, in fact, no representative of any kind to present their grievances to their employer. Under these circumstances, they had to speak for themselves as best they could. As pointed out above, prior to the day they left the shop, several of them had repeatedly complained to company officials about the cold working conditions in the shop. These had been more or less spontaneous individual pleas, unsupported by any threat of concerted protest, to which the company apparently gave little consideration and which it now says the Board should have treated as nothing more than 'the same sort of gripes as the gripes made about the heat in the summertime.' The bitter cold of January 5, however, finally brought these workers' individual complaints into concert so that some more effective action could be considered. Having no bargaining representative and no established procedure by which they could take full advantage of their unanimity of opinion in negotiations with the company, the men took the most direct course to let the company know that they wanted a warmer place in which to work. So, after talking among themselves, they walked out together in the hope that this action might spotlight their complaint and bring about some improvement in what they considered to be the 'miserable' conditions of their employment. This we think was enough to justify the Board's holding that they were not required to make any more specific demand than they did to be entitled to the protection of § 7.
8
Although the company contends to the contrary, we think that the walkout involved here did grow out of a 'labor dispute' within the plain meaning of the definition of that term in § 2(9) of the Act, which declares that it includes 'any controversy concerning terms, tenure or conditions of employment * * *.'11 The findings of the Board, which are supported by substantial evidence and which were not disturbed below, show a running dispute between the machine shop employees and the company over the heating of the shop of cold days—a dispute which culminated in the decision of the employees to act concertedly in an effort to force the company to improve that condition of their employment. The fact that the company was already making every effort to repair the furnace and bring heat into the shop that morning does not change the nature of the controversy that caused the walkout. At the very most, that fact might tend to indicate that the conduct of the men in leaving was unnecessary and unwise, and it has long been settled that the reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not.12 Moreover, the evidence here shows that the conduct of these workers was far from unjustified under the circumstances. The company's own foreman expressed the opinion that the shop was so cold that the men should go home. This statement by the foreman but emphasizes the obvious—that is, that the conditions of coldness about which complaint had been made before had been so aggravated on the day of the walkout that the concerted action of the men in leaving their jobs seemed like a perfectly natural and reasonable thing to do.
9
Nor can we accept the company's contention that because it admittedly had an established plant rule which forbade employees to leave their work without permission of the foreman, there was justifiable 'cause' for discharging these employees, wholly separate and apart from any concerted activities in which they engaged in protest against the poorly heated plant. Section 10(c) of the Act does authorize an employer to discharge employees for 'cause' and our cases have long recognized this right on the part of an employer.13 But this, of course, cannot mean that an employer is at liberty to punish a man by discharging him for engaging in concerted activities which § 7 of the Act protects. And the plant rule in question here purports to permit the company to do just that for it would prohibit even the most plainly protected kinds of concerted work stoppages until and unless the permission of the company's foreman was obtained.
10
It is of course true that § 7 does not protect all concerted activities, but that aspect of the section is not involved in this case. The activities engaged in here do not fall within the normal categories of unprotected concerted activities such as those that are unlawful,14 violent15 or in breach of contract.16 Nor can they be brought under this Court's more recent pronouncement which denied the protection of § 7 to activities characterized as 'indefensible' because they were there found to show a disloyalty to the workers' employer which this Court deemed unnecessary to carry on the workers' legitimate concerted activities.17 The activities of these seven employees cannot be classified as 'indefensible' by any recognized standard of conduct. Indeed, concerted activities by employees for the purpose of trying to protect themselves from working conditions as uncomfortable as the testimony and Board findings showed them to be in this case are unquestionably activities to correct conditions which modern labor-management legislation treats as too bad to have to be tolerated in a humane and civilized society like ours.
11
We hold therefore that the Board correctly interpreted and applied the Act to the circumstances of this case and it was error for the Court of Appeals to refuse to enforce its order. The judgment of the Court of Appeals is reversed and the cause is remanded to that court with directions to enforce the order in its entirety.
12
Reversed and remanded.
13
Mr. Justice FRANKFURTER and Mr. Justice WHITE took no part in the consideration or decision of this case.
1
291 F.2d 869. The Court of Appeals also refused to enforce another Board order requiring the respondent company to bargain collectively with the Industrial Union of Marine & Shipbuilding Workers of America, AFL—CIO, as the certified bargaining representative of its employees. Since the Union's status as majority bargaining representative turns on the ballots cast in the Board election by four of the seven discharged employees, the enforceability of that order depends upon the validity of the discharges being challenged in the principal part of the case. Our decision on the discharge question will therefore also govern the refusal-to-bargain issue.
2
49 Stat. 449, as amended, 61 Stat. 136, 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq.
3
368 U.S. 924, 82 S.Ct. 366, 7 L.Ed.2d 189.
4
The Board made a specific finding on this issue: 'We rely, inter alia, upon * * * the credited testimony of employees Heinlein, Caron, and George as to previous complaints made to the Respondent's foremen over the cold working conditions, and to the effect that the men left on the morning of January 5 in protest of the coldness at the plant * * *.' 126 N.L.R.B. 1410, 1411.
5
The Trial Examiner expressly credited this testimony and the Board expressly relied upon it. 126 N.L.R.B., at 1411.
6
49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. § 157, 29 U.S.C.A. § 157. Section 7 in full is as follows: 'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).'
7
49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(1), 29 U.S.C.A. § 158(a)(1).
8
49 Stat. 453—454, as amended, 61 Stat. 146—147, 29 U.S.C. § 160(c), 29 U.S.C.A. § 160(c).
9
291 F.2d at 877.
10
'No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.' 49 Stat. 453 454, as amended, 61 Stat. 146—147, 29 U.S.C. § 160(c), 29 U.S.C.A. § 160(c).
11
49 Stat. 450, as amended, 61 Stat. 137—138, 29 U.S.C. § 152(9), 29 U.S.C.A. § 152(9). (Emphasis supplied.)
12
'The wisdom or unwisdom of the men, their justification or lack of it, in attributing to respondent an unreasonable or arbitrary attitude in connection with the negotiations, cannot determine whether, when they struck, they did so as a consequence of or in connection with, a current labor dispute.' National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344, 58 S.Ct. 904, 910, 82 L.Ed. 1381.
13
See, e.g. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893.
14
Southern Steamship Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246.
15
National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627.
16
National Labor Relations Board v. Sands Manufacturing Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682.
17
National Labor Relations Board v. Local Union No. 1229, International Brotherhood of Electrical Workers, 346 U.S. 464, 477, 74 S.Ct. 172, 179, 98 L.Ed. 195.
| 67
|
370 U.S. 31
82 S.Ct. 1119
8 L.Ed.2d 313
James Victor SALEM, Petitioner,v.UNITED STATES LINES COMPANY.
No. 283.
Argued March 19, 1962.
Decided May 28, 1962.
Rehearing Denied June 25, 1962.
See 370 U.S. 965, 82 S.Ct. 1578.
Robert Klonsky, Brooklyn, N.Y., for petitioner.
Walter X. Connor, New York City, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The first question to be decided the seaman's personal injury suit for damages on the grounds of unseaworthiness and negligence under the Jones Act1 is whether the jury should have been allowed to determine, in the absence of supporting testimony by an expert in naval architecture, a claim that the shipowner failed to equip his ship with necessary and feasible safety devices to prevent the mishap which befell the seaman.
2
The trial judge submitted for the jury's determination various bases of respondent's alleged liability, including the claim resting on the failure to provide certain safety devices. Because the jury returned a general verdict for the seaman, it cannot be said what basis of liability the jury found to exist. The Court of Appeals for the Second Circuit, Judge Smith dissenting, reversed and remanded for a new trial, holding that in the absence of expert evidence, it was error to have allowed the jury to consider the failure to provide safety devices. 2 Cir., 293 F.2d 121, 123—124. Since the question whether supporting expert testimony is needed is important in litigation of this type, we granted certiorari. 368 U.S. 811, 82 S.Ct. 62, 7 L.Ed.2d 21. We hold that the Court of Appeals erred.
3
Petitioner was a lookout on the S.S. United States. He was injured as he moved from a ladder to a platform leading to his post in the crow's-nest. The crow's-nest was housed in a 'bubble' half way up a hollow aluminum radar tower which rose 65 feet from the bridge deck. The ladder extended the full height of the tower along the inside of its after side. At various levels inside the tower were horizontal platforms, at the after ends of which were access openings slightly larger than manholes, through which the ladder passed straight up. The tower was more than six feet from fore to aft at the crow's-nest level, and tapered from four to three feet in width. There was only a narrow ledge around three-quarters of the opening in the platform at that level; the platform proper was toward the bow, and led to the door in the crow's-nest. As a seaman climbed the ladder to the crow's-nest, he faced astern until his feet were approximately level with the platform. To get from the ladder to the platform proper, he had to pivot, putting one foot on the starboard or port ledge, follow it with the other foot, complete his pivot and step forward along the ledge to the platform proper. Although the respondent describes the crow's-nest and its approach as 'purposely constructed so as to provide maximum protection and safety for members of the crew having to use it,' there were no devices intended to facilitate safe maneuvering from ladder to platform; for support during this maneuver, the seaman could grasp one of the thin vertical beams located at intervals along the port and starboard sides, or a vertical, bulky rectangular pipe enclosing a radar cable and near the starboard side, or a horizontal stiffener or ledging that ran at shoulder-height around the tower. Respondent argues that the seaman also could simply spread his arms to brace himself against the sides of the tower.
4
On the night of February 15—16, 1958, as the United States went at high speed and rolled in rough seas, the tower was plunged into darkness, just as the petitioner was executing the movement to the crow's-nest platform from the ladder. Illumination within the tower was provided by five electric lights at various levels, but these burned out frequently. Two had been out for a long period and two others had gone out a few hours before the accident, leaving as the only light that which was at the crow's-nest platform. At some point after petitioner had begun the maneuver from ladder to platform, but before he reached a place on the platform proper and away from the access opening, that last light went out. An instant later petitioner fell backwards across the opening and struck his head against the ladder and his lower back against the fore edge of the opening, leaving his body suspended in the opening. He grasped the ladder rungs and called for help from the lookout on duty in the crow's-nest. With the lookout's aid he was able to seat himself on the starboard ledge with his legs hanging down through the opening and his right arm around the cable pipe. The lookout returned to the crow's-nest to phone the bridge for help. In his absence the petitioner became dizzy and fell through the opening to a place eight feet below the platform.
5
The only issue before us on this phase of the case is whether the trial judge erred in instructing the jury that they might find the respondent liable for unseaworthiness or negligence for having failed to provide 'railings or other safety devices' at the crow's-nest platform. The Court of Appeals held that it was error to submit that question to the jury because 'There was no expert testimony that proper marine architecture required the additional provision of railings or other safety devices on such a ladder or platform enclosed within a tower leading to a crow's nest. Should the jury, under these conditions, have been permitted to decide whether proper marine architecture required railings or other safety devices? In two recent cases, this court has held that a jury should not be permitted to speculate on such matters in the absence of expert evidence.'2 293 F.2d at 123. There was evidence in the form of testimony and photographs, from which the jury might clearly see the construction at the crow's-nest level which we have described. If the holding of the Court of Appeals is only that in this case there are peculiar fact circumstances which made it impossible for a jury to decide intelligently, we are not told what those circumstances are, and our examination of the record discloses none.3 If the holding is that claims which might be said to touch upon naval architecture can never succeed without expert evidence, neither the Court of Appeals nor the respondent refers us to authority or reason for any such broad proposition.
6
This is not one of the rare causes of action in which the law predicates recovery upon expert testimony. See Wigmore, Evidence (od ed. 1940), §§ 2090, 2090a. Rather, the general rule is as stated by Mr. Justice Van Devanter, when circuit judge, that expert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge 'if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation * * *.' United States Smelting Co. v. Parry, 10 Cir., 166 F. 407, 411, 415. Furthermore, the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous. Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487.
7
This Court has held, in a factual context similar to this, that there was no error, let alone manifest error, in having a jury decide without the aid of experts. Spokane & Inland Empire R. Co. v. United States, 241 U.S. 344, 36 S.Ct. 668, 60 L.Ed. 1037, was an action by the United States to recover penalties for violation of the Safety Appliance Act provision requiring handholds or grab-irons to be placed on the ends of railroad cars used in interstate commerce.4 The defendant railroad offered expert testimony to establish that the substitutes provided on its cars would accomplish the statute's purposes. The jury had inspected the cars, and the expert evidence was excluded when the United States objected that this 'was a matter of common knowledge.' We held that 'the court was clearly right in holding that the question was not one for experts, and that the jury, after hearing the testimony and inspecting the (cars) were competent to determine the issue * * *.' 241 U.S. at 351, 36 S.Ct. at 671.5
8
In sum, we agree with Judge Smith in dissent below:
9
'There was before the jury sufficient evidence, both from oral testimony and from photographs, for it to visualize the platform on and from which plaintiff fell and to determine whether some railing or hand hold in addition to the structures present was reasonably necessary for the protection of a seaman passing from the ladder to the platform in the swaying mast.
10
'* * * (There is no) blanket proposition that any and all theories of negligence and/or unseaworthiness which might touch on the broad field of 'naval architecture' may be properly submitted to a jury only if supported by expert testimony. Here the potential danger was fairly obvious and a jury should be perfectly competent to decide whether the handholds furnished were sufficient to discharge the owner's duty to provide his seamen with a safe place to work. Such a determination hardly requires expert knowledge of naval architecture * * *.' 293 F.2d at 126.
11
Indeed, 'if there was a reason hidden from the ordinary mind why this condition of things must have existed, those facts called upon the defendant to make that reason known.' Missouri, K. & T.R. Co. v. Williams, 103 Tex. 228, 231, 125 S.W. 881, 882; and see Poignant v. United States, 2 Cir., 225 F.2d 595, 602 (concurring opinion).6
12
There is another question to be decided. The petitioner also sought maintenance and cure. The trial judge awarded past maintenance, which the respondent has not disputed, and also future maintenance for three years. The Court of Appeals set aside the award of future maintenance, saying: 'There does not appear to be any sufficient basis, by opinion evidence or otherwise, for the finding that three years is the period reasonably to be expected for Salem to reach maximum improvement.' 293 F.2d, at 125. The trial judgment made no findings. We have therefore examined the evidence on the question in the light of what was said in Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 531—532, 58 S.Ct. 651, 655, 82 L.Ed. 993: '* * * (A)mounts (for future maintenance should be such) as may be needful in the immediate future for the maintenance and cure of a kind and for a period which can be definitely ascertained.' We agree that the evidence provides no support under that test for the award of three years' future maintenance.
13
We affirm as respects maintenance but otherwise reverse the judgment of the Court of Appeals. Since other grounds of reversal urged by the respondent were not reached by that court, the case is remanded to it for further proceedings in conformity with this opinion. It is so ordered.
14
Affirmed in part, reversed in part and case remanded with directions.
15
Mr. Justice FRANKFURTER took no part in the decision of this case.
16
Mr. Justice WHITE took no part in the consideration or decision of this case.
17
Mr. Justice HARLAN, dissenting in part and concurring in part.
18
I do not read the Court of Appeals' opinion either as holding that, because of 'peculiar fact circumstances' petitioner's claims respecting the alleged faulty construction of the radar tower required 'supporting expert testimony' (ante, 370 U.S., pp. 35, 32, 82 S.Ct., pp. 1122, 1120) (emphasis added), or as establishing a general proposition that such testimony is needed in every instance where a seaman claims to have been injured because of his employer's failure to equip a ship with safety devices.
19
Taking its opinion in light of the record, I think it apparent that the Court of Appeals held no more than that reversal was required because 'there was no evidence of any kind in the record to support the view that railings or other safety devices could feasibly be constructed, or that failure to provide them constituted negligence or made the ship unseaworthy.' 293 F.2d at 123. (Emphasis added.) To me it seems clear that the court referred to expert testimony simply as an example of the kind of evidence that the petitioner might have offered on this score. Consequently, the District Court's charge that the jury could find the respondent negligent 'in failing to provide railings or other safety devices' had injected into the case a theory of liability which had not been presented to the jury by the evidence introduced at the trial. This has uniformly been held to constitute reversible error. E.g., Mandel v. Pennsylvania R. Co., 2 Cir., 291 F.2d 433; Smith v. Ellerman Lines, Ltd., 3 Cir., 247 F.2d 761, 766; see Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 78—79, 27 S.Ct. 412, 51 L.Ed. 708.
20
The trial transcript, insofar as it has been reproduced in the record before this Court, bears out the conclusion of the Court of Appeals that evidence with respect to the alleged failure to maintain appropriate safety devices was entirely lacking. Petitioner's evidence, apart from medical testimony concerning the extent of his injuries, related almost entirely to the alleged slippery condition of the platform leading to the crow's-nest, the inadequate and defective lighting, and the negligence of the lookout. Petitioner himself did testify that there was no 'grip' or 'handrails' at the crow's-nest level, and photographs that were introduced into evidence confirm this undisputed assertion.
21
With nothing more before the jury than this, the trial court's instruction certainly left the jury entirely at large to reach an uninformed conclusion as to what would have constituted reasonable conduct on the part of the respondent with respect to the equipping of this part of the ship. No evidence of any kind was introduced to show whether radar towers on vessels of this sort ordinarily were equipped with safety devices or whether seamen assigned thereto had need of such equipment in the ordinary course of their activities. Expert testimony would have served this purpose, as would any other evidence bearing probatively on the reasonableness of respondent's conduct in failing to equip its vessel with these devices. In the absence of any such evidence the Court of Appeals was entirely justified in holding that the District Court's instruction amounted to reversible error.
22
I agree with this Court's holding as to future maintenance. I would affirm.
1
41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688.
2
The majority quoted from Martin v. United Fruit Co., 2 Cir., 272 F.2d 347, as follows: "Finally, we reject the plaintiff's contention that the trial court committed error in not permitting the jury to determine whether the placement of the hinge at the bottom of the deadlight was an improper method of ship construction so as to make the vessel unseaworthy. Surely this is a technical matter in which an expert knowledge of nautical architecture is required in order to form an intelligent judgment. Since no expert testimony was introduced, it was correct to exclude this matter from the jury's consideration." 293 F.2d, at 123. The majority also quoted from Fatovic v. Nederlandsch-Ameridaansche Stoomvaart, Maatschappij, 2 Cir., 275 F.2d 188, in which the question was whether a stopping arrangement could feasibly be made part of a ton-and-a-half boom to keep it from swinging freely: "In any event, the question was one of nautical architecture about which jurors lack the knowledge to form an intelligent judgment in the absence of expert testimony. Martin * * *. Since there was no expert testimony on the matter, it should not have been submitted to the jury." 293 F.2d at 123 124. Whatever may have required that the jury have the aid of expert testimony in those cases, no showing is made of the necessity here.
3
Compare Texas & Pacific R. Co. v. Watson, 190 U.S. 287, 290, 23 S.Ct. 681, 682, 47 L.Ed. 1057, in which there may have been peculiar difficulties impeding installation of any truly effective safety device.
4
27 Stat. 531, 45 U.S.C. § 4, 45 U.S.C.A. § 4.
5
Although it was later held that the Safety Appliance Act has no room for the doctrine of equivalent, substitute devices, St. Joseph & Grand Island R. Co. v. Moore, 243 U.S. 311, 37 S.Ct. 278, 61 L.Ed. 741, the authority of Spokane on jury competence is unimpaired.
6
The value of an expert's testimony to explain what the best safety device might be is clear, but the question here is simply whether some such device should have been provided. Zinnel v. United States Shipping Board Emergency Fleet Corp., 2 Cir., 10 F.2d 47, 48. Nor would expert testimony about customary equippage be essential, pure Oil Co. v. Snipes, 5 Cir., 293 F.2d 60, 71; nor, even if offered, would it have concluded the questions of unseaworthiness or negligence. Wabash R. Co. v. McDaniels, 107 U.S. 454, 460—461, 2 S.Ct. 932, 937, 27 L.Ed. 605; Grand Trunk R. Co. v. Richardson, 91 U.S. 454, 469—470, 23 L.Ed. 356; The T. J. Hooper, 2 Cir., 60 F.2d 737; Kennair v. Mississippi Shipping Co., 2 Cir., 197 F.2d 605; June T., Inc., v. King, 5 Cir., 290 F.2d 404.
Although the law favors the aid of experts if the problem is not one 'upon which the lay or uneducated mind is capable of forming a judgment,' Milwaukee & St. P.R. Co. v. Kellogg, 94 U.S. 469, 472, 24 L.Ed. 256, if the matter is only arguably beyond common experience, expert testimony will be admitted with care. The rule reflects the consideration of avoidance of unnecessarily prolonged trials and attendant expense and confusion. Winans v. New York & Erie R. Co., 21 How. 88, 100—101, 16 L.Ed. 68; and see Thorn v. Worthing Skating Rink Co. (1876), reported in Plimpton v. Spiller, 6 Ch.D. 412, footnote at 415—418 (1877).
| 78
|
370 U.S. 19
82 S.Ct. 1130.
8 L.Ed.2d 305
SUNKIST GROWERS, INC., et al., Petitioners,v.WINCKLER & SMITH CITRUS PRODUCTS CO. et al.
No. 241.
Argued March 21 and 22, 1962.
Decided May 28, 1962.
Rehearing Denied June 25, 1962.
See 370 U.S. 965, 82 S.Ct. 1577.
Herman F. Selvin, Los Angeles, Cal., for petitioners.
William C. Dixon, Oakland, Cal., Holmes Baldridge, on the brief, for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a treble damage suit brought under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, 15 U.S.C.A. § 15, charging petitioners, Sunkist Growers, Incorporated, and The Exchange Orange Products Company, with conspiracy to restrain and monopolize interstate trade and commerce in citrus fruits and by-products and with actual monopolization thereof in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2, as amended. The petitioners are each agricultural cooperative organizations, Exchange Orange being a wholly owned subsidiary of Sunkist. Petitioners contend the case was submitted under instructions permitting the jury to find an illegal conspiracy among them and Exchange Lemon Products Company, a cooperative processing association owned and operated exclusively by a number of lemon-grower associations all of which are members of Sunkist Growers, Inc. They say that under the exemptions from the antitrust laws granted agricultural associations by § 6 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 17, 15 U.S.C.A. § 17, and § 1 of the Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. § 291, 7 U.S.C.A. § 291, Sunkist, Exchange Orange, and Exchange Lemon, being made up of the same growers and associations, cannot be charged with conspiracy among themselves. The trial court overruled this contention, among others, and the jury returned a verdict of $500,000. Judgment for treble this amount and attorney fees, less some minor offsets, was entered. The Court of Appeals, accepting petitioners' view of the instructions, held that the exemption claimed did not apply here and affirmed the judgment as to liability but reversed as to the amount of damages. 9 Cir., 284 F.2d 1. We granted certiorari limited to the issue of the immunity of interorganizational dealings among the three cooperatives from the conspiracy provisions of the antitrust laws. 368 U.S. 813, 82 S.Ct. 56, 7 L.Ed.2d 22. We have concluded that the case was submitted to the jury on the theory claimed by petitioners and that this was erroneous. Thus we reverse the judgment.
2
Sunkist Growers, Inc., has at its base 12,000 growers of citrus fruits in California and Arizona. These growers are organized into local associations which operate packing houses. The associations in turn are grouped into district exchanges, and representatives from these exchanges make up the governing board of Sunkist, a nonstock membership corporation. Sunkist serves the members as an organization for marketing their fresh fruit and fruit products1 through its field, advertising, sales, and traffic departments. All of its net revenues are distributed to the members.
3
In 1915 several member associations of Sunkist undertook to develop by-products for lemons in order to create a market for produce not salable as fresh fruit. Because this was a new, untried field the entire cooperative did not participate. Rather a separate cooperative—Exchange Lemon, a nonprofit stock corporation was formed for this venture by the interested associations. Since that time Exchange Lemon has retained its separate identity although it is made up exclusively of lemon-grower associations which are also members of Sunkist. Its function now is primarily one of processing, and the resultant products are marketed for the owners by Sunkist through its products department, which is jointly managed by directors of Exchange Lemon and Exchange Orange.
4
One year after the organization of Exchange Lemon a similar association was formed to develop by-products for oranges. This organization, Exchange Orange, was comprised of a number of Sunkist member associations until 1931. At that time the Sunkist directors decided to make the processing facilities of Exchange Orange available to all of its member associations by purchasing it and operating it as a wholly owned subsidiary.
5
In sum, the individual growers involved each belong to a local grower association. Fruit which is to be sold fresh is packed by the associations and marketed by Sunkist, a nonstock membership corporation comprised of district exchanges to which the associations belong. Most fruit which is to be processed into by-products is handled by Exchange Orange, a subsidiary of Sunkist, or by Exchange Lemon, a separate organization comprised of a number of Sunkist member associations.2 It is then marketed by the products department of Sunkist which is managed by directors of Exchange Orange and Exchange Lemon.
6
Competing with the three cooperatives in the California-Arizona area in the business of processing and selling canned orange juice were four independent processors, which were primarily dependent upon Sunkist for their supply of by-product oranges.3 In 1951 two of these concerns, TreeSweet Products Company and E. A. Silzle Corporation, had process-and-purchase contracts with Exchange Orange. Under its contract TreeSweet agreed to process at cost an undetermined amount of oranges provided by Exchange Orange and to purchase the resultant orange juice at the then current price of Sunkist. The average net price for the oranges under this contract was alleged to have been $25.10 per ton.4 The contract with Silzle provided that it would process a stated amount of oranges for Exchange Orange and purchase the juice at a stated price less its processing cost alleged to have netted $17.66 per ton.5 The third producer, Case-Swayne Company, allegedly declined Sunkist's offer of a similar contract. Respondent Winckler & Smith Citrus Products Company, the final processor, was offered oranges only at the list price of $40 to $44 per ton, depending upon content of soluble solids, and was refused the process-and-purchase arrangements described above.
7
Respondents brought this suit on the theory that Sunkist and Exchange Orange controlled the supply of by-product oranges available in the California-Arizona area to independent processors; that they combined and conspired with Exchange Lemon, TreeSweet, and Silzle to restrain and to monopolize interstate trade and commerce in 1951 in the processing and sale of citrus fruit juices, particularly canned orange juice; that they in fact monopolized such trade and commerce; and that the purpose or effect thereof was the elimination of Winckler as a competitor in the sale of such juices. Respondents relied on six specific acts and contracts which allegedly furthered the conspiracy, namely: (1) the processing of oranges at cost by Exchange Lemon for Exchange Orange during 1951; (2) the processing of lemons at cost by Exchange Orange for Exchange Lemon during 1951; (3) the establishment by Sunkist and Exchange Orange of a price to independent processors alleged to be too high to enable purchasers to compete, i.e., the $40—$44 per ton list price; (4) the contract between Exchange Orange and TreeSweet in 1951; (5) the contract between Exchange Orange and Silzle in 1951; (6) the refusal to sign a comparable contract with respondent Winckler.
8
After a lengthy trial producing a 4,000-page transcript, the case went to the jury under a necessarily complicated charge. As to the parties the jury might find to have participated in an illegal conspiracy, the court gave several instructions. One, given early in the charge, was that:
9
'a parent corporation and its wholly-owned subsidiary can be guilty of combining or conspiring together to violate the antitrust laws. The defendants Sunkist Growers, Inc., and its wholly-owned subsidiary Exchange Orange Products Company, can accordingly combine or conspire together or with others to violate Sections 1 and 2 of the Sherman Act as charged in the first and second causes of action, subject to other instructions concerning the Capper-Volstead Act, and Section 6 of the Clayton Act, and the exemptions contained therein.'
10
The instructions on the Clayton and Capper-Volstead Acts merely stated that the cooperatives could lawfully have a monopoly of the fruit and products in which they dealt. Later references to the alleged conspiracy often mentioned only petitioners and the two independent processors, e.g., 'If you find that either or both of the defendants (Sunkist and Exchange Orange, petitioners here) combined with TreeSweet or Silzle to eliminate the competition of the plaintiff * * *.' However, the court's concluding instructions on the subject could well have been taken by the jury as permitting them to find an illegal conspiracy solely among the three cooperatives:
11
'Unless you find, therefore, from the preponderance of the evidence, that Sunkist or Exchange Orange or either of them, combined or conspired with either TreeSweet, or Silzle, or ELP (Exchange Lemon Products), and in 1951 did one or more of the specific acts charged * * *.
12
'* * * Unless you find from the preponderance of the evidence that defendants Sunkist and Exchange Orange, or either of them, and one or more of the alleged co-conspirators (one of which was Exchange Lemon), combined and conspired, and pursuant to such combination or conspiracy * * *.
13
'Those are summary instructions which sort of sum up what is charged and what the plaintiff must prove.'
14
And in a final addendum after consultation with counsel the court instructed that:
15
'I also am told that I spoke about how the defendants had conspired on one occasion. The charge is not that the defendants conspired. The charge is that the defendants and co-conspirators conspired.
16
'However, as a matter of fact, you may find that nobody conspired, or you may pick out and decide that some number less than the total conspired.'
17
On the question now before us, the Court of Appeals held that any objection to at least one of the conspiracy instructions was waived; that in any event different agricultural cooperatives combining together are not entitled to claim a total immunity for acts which they might do unilaterally and individually; and that the common ownership of Sunkist, Exchange Orange, and Exchange Lemon did not prevent the finding of an illegal conspiracy among them.
18
We believe the instructions quite plainly left it open for the jury to base their verdict upon a finding of a conspiracy among petitioners and Exchange Lemon.6 At the outset the court instructed that a conspiracy could be found between Sunkist and its wholly owned subsidiary Exchange Orange. Thereafter the charge advised the jury that a finding of conspiracy between 'Sunkist or Exchange Orange or either of them * * * (and) either TreeSweet, or Silzle, or ELP' was sufficient basis for a judgment against petitioners. From this it is entirely probable that the jury's verdict against both petitioners was based on their finding of a conspiracy among Sunkist, Exchange Orange, and Exchange Lemon. There is no question that Exchange Lemon was identified in the complaint and throughout the trial as an alleged co-conspirator. In no fewer than five instances did the trial court refer to the alleged conspiracy as being among petitioners and the 'co-conspirators' or petitioners and Exchange Lemon, TreeSweet, or Silzle. The final summarization on conspiracy was in terms of finding that petitioners combined or conspired with either TreeSweet or Silzle or Exchange Lemon, and the addendum instructions emphasized that the jury could find either or both petitioners had illegally conspired with any one of the alleged co-conspirators. It is true that in some instances the court's conspiracy instructions mentioned only TreeSweet and Silzle as co-conspirators. Conjecture as to the reasons for this would not be fruitful. For it is clear that the court never limited the jury to a consideration of those parties as the sole co-conspirators. And other instructions, including the summarization, allowed the jury to base their verdict upon a finding of an illegal conspiracy solely among Sunkist, Exchange Orange, and Exchange Lemon.
19
It is suggested by respondents and the court below that petitioners waived their objection to these instructions. This is based on petitioners' acquiescence in the additional instructions, including references to the conspiracy, given the jury after the general charge. But petitioners' actions here must be viewed in context. Prior to the general charge, conferences of counsel and the trial court were held to discuss the instructions. At each point counsel for petitioners objected to instructions which suggested that the three cooperatives might be found to have illegally conspired among themselves and requested instructions that would have limited a finding of an unlawful conspiracy in this case to one among petitioners and TreeSweet or Silzle. The trial court consistently ruled adversely to petitioners on this point. After the charge was delivered, counsel were told that all prior objections would be preserved and asked if they had any additional objections. In light of this assurance and petitioners' prior objections and requests, we believe the acquiescence in the added instructions could not be considered a waiver.
20
We are squarely presented, then, with the question of whether Sunkist, Exchange Orange, and Exchange Lemon—the three legal entities formed by these 12,000 growers—can be considered independent parties for the purposes of the conspiracy provisions of §§ 1 and 2 of the Sherman Act. We conclude not. Section 6 of the Clayton Act provides, inter alia, that agricultural organizations instituted for the purposes of mutual help shall not be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws.7 The Capper-Volstead Act sets out this immunity in greater specificity:
21
'That persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes * * *.'8
22
There can be no doubt that under these statutes the 12,000 California-Arizona citrus growers ultimately involved could join together into one organization for the collective processing and marketing of their fruit and fruit products without the business decisions of their officers being held combinations or conspiracies. The language of the Capper-Volstead Act is specific in permitting concerted efforts by farmers in the processing, preparing for market, and marketing of their products. And the legislative history of the Act reveals several references to the Sunkist organization—then called the California Fruit Growers Exchange and numbering 11,000 members—including a suggestion by Senator Capper that this was the type of cooperative that would find 'definite legalization' under the legislation.9 Although we cannot draw from these references a knowing approval of the tripartite legal organization of the 11,000 growers, they do indicate that a cooperative of such size and general activities was contemplated by the Act.
23
Instead of a single cooperative, these growers through local associations first formed one area-wide organization (Sunkist) for marketing purposes. When it was decided to perform research and processing on a joint basis, separate organizations were formed by the interested associations for reasons outlined above. At a later date one of these (Exchange Orange) was acquired by the Sunkist organization and is presently held as a subsidiary. The other (Exchange Lemon) is still owned by the lemon-grower associations, all of whom are also member associations of Sunkist. With due respect to the contrary opinions of the Court of Appeals and District Court, we feel that the 12,000 growers here involved are in practical effect and in the contemplation of the statutes one 'organization' or 'association' even though they have formally organized themselves into three separate legal entities. To hold otherwise would be to impose grave legal consequences upon organizational distinctions that are of de minimis meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts. There is no indication that the use of separate corporations had economic significance in itself or that outsiders considered and dealt with the three entities as independent organizations. That the packing is done by local associations, the advertising, sales, and traffic by divisions of the area association, and the processing by separate organizations does not in our opinion preclude these growers from being considered one organization or association for purposes of the Clayton and Capper-Volstead Acts.
24
Since we hold erroneous one theory of liability upon which the general verdict may have rested—a conspiracy among petitioners and Exchange Lemon—it is unnecessary for us to explore the legality of the other theories. As was stated of a general verdict in Maryland v. Baldwin, 112 U.S. 490, 493, 5 S.Ct. 278, 280, 28 L.Ed. 822 (1884), '(I)ts generality prevents us from perceiving upon which plea they found. If, therefore, upon any one issue error was committed, either in the admission of evidence or in the charge of the court, the verdict cannot be upheld * * *.' Suffice it to say that our decision in no way detracts from earlier cases holding agricultural cooperatives liable for conspiracies with outside groups, United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1939), and for monopolization, Maryland & Virginia Milk Producers Assn. v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880 (1960).
25
Reversed and remanded.
26
Mr. Justice FRANKFURTER took no part in the decision of this case.
27
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
These include juices, concentrates, oil, pectin, pharmaceuticals, and cattle feed.
2
Some by-product fruit is sold to or processed by independent processors.
3
Sunkist also sold by-product oranges to additional companies for processing into by-products other than canned orange juice.
4
The soluble solids content of the oranges processed by TreeSweet under this contract averaged 131.6 pounds per ton.
5
The soluble solids content of these oranges averaged 120 pounds per ton.
6
It could be argued that the instructions also permitted the jury to find an illegal conspiracy solely between petitioners. Our holding renders unnecessary an evaluation of this interpretation of the charge.
7
Sec. 6. 'That the labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticulatural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.'
8
The Act has certain organizational requisites which are not in issue here.
9
61 Cong.Rec. 1036 (1921) (remarks of Representative Black); 62 Cong.Rec. 2052 (1922) (Senator Kellogg); 62 Cong.Rec. 2061 (1922) (Senator Capper); 62 Cong.Rec. 2277 (1922) (Senator Walsh).
| 78
|
370 U.S. 41
82 S.Ct. 1105
8 L.Ed.2d 321
J. B. BEARDv.Elvis J. STAHR, Jr., Secretary of the Army, et al.
No. 648.
May 28, 1962.
Frederick Bernays Wiener, for appellant.
Solicitor General Cox, Assistant Attorney General Orrick and John G. Laughlin, Jr., for appellees.
PER CURIAM.
1
The judgment of the District Court is vacated and the cause is remanded with directions to dismiss the complaint. The action is premature. The appellant will not be removed from the active list of the Regular Army unless the Secretary of the Army exercises the discretionary authority to remove him conferred by 10 U.S.C. § 3794, 10 U.S.C.A. § 3794. The Secretary has not stated that he will so exercise his discretion as to remove appellant. If the Secretary does not remove the appellant it will be unnecessary to pass on the constitutional objections which have been urged. If appellant is removed, the Court is satisfied that adequate procedures for seeking redress will be open to him. Compare Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 772 773, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796. Accordingly, the application for a stay is denied.
2
Judgment vacated and cause remanded with directions.
3
THE CHIEF JUSTICE is of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the case on the merits and would grant the application for a stay.
4
Mr. Justice FRANKFURTER took no part in the decision of this case.
5
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
6
Appellant is a Major in the Regular Army and has the temporary rank of Lieutenant Colonel. He served in World War II and received the Bronze Star Medal. He at present has had over 19 years of active federal service and will be eligible for retirement in November 1962. But for the present charge against him his military record reflects exemplary conduct and high efficiency ratings.
7
These years of faithful service have now gone largely for naught under a decision of an Army Board of Review recommending that he be given a general discharge. Whatever the merits may be, I believe that the procedure used at his hearing violated our standards of fairness.
8
Under the statute here in question, 10 U.S.C. § 3792(c), 10 U.S.C.A. § 3792(c), an officer faced with a charge carries the burden of proof that 'he should be retained on the active list.'
9
The District Court held that there was no constitutional objection to placing this burden of proof on the officer. 200 F.Supp. 766, 775. It reasoned that since the President could dismiss an officer summarily,* Congress could place on the one removed 'the onus of convincing his superiors that he should not be eliminated.' Ibid. Dismissal is one thing; dismissal with stigma, as here, is quite another. Dismissal with stigma is a severe penalty. In comparable situations, the Government has been required to carry the burden of proof. Kwong Hai Chew v. Rogers, 103 U.S.App.D.C. 228, 257 F.2d 606; Wood v. Hoy, 9 Cir., 266 F.2d 825, 830. Unless this burden is meticulously maintained, discharge for race, for religion, for political opinion, or for beliefs may masquerade under unproved charges. This right, like the right to be heard, is basic to our society. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (concurring opinion); Beilan v. Board of Public Education, 357 U.S. 399, 421—423, 78 S.Ct. 1317, 1330—1331, 2 L.Ed.2d 1414 (dissenting opinion); Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216.
10
There is a second reason why we should remand this case for a new hearing. The one witness whose testimony was critical to the case was not called. Confrontation and cross-examination are, as I understand the law, vital when one's employment rights are involved (see Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377)—the factor that distinguishes Cafeteria and Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230, where the only question was access to a military base. Perhaps the missing accuser—whose activities were described in uncomplimentary terms in Rittenour v. District of Columbia, D.C.Mun.App., 163 A.2d 558—would have made such an unbecoming witness that the Board would have dismissed the charges. Faceless informers are often effective if they need not take the stand. A fair hearing requires the production of the accuser so that cross-examination can test his character and reliability. That question is very close to the one involved in No. 1123, Misc., Williams v. Zuckert, in which we granted certiorari only the other day. 369 U.S. 884, 82 S.Ct. 1166. This case should be heard with that one.
11
I think the present case is ripe for review. Once the Secretary of the Army approves the decision now challenged, appellant will be severed from military service with less than an honorable discharge. If a wrong was committed, I assume that he could recover a judgment that restores any loss of salary or pension. More than dollars, however, are involved: at stake is a man's professional standing, his character, and his claim to an honorable discharge. Where the Army departs from the statutory standard which prescribes the basis on which discharges will be issued, the federal courts can intervene. See Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503. Though the Court's opinion may be read as indicating that a collateral proceeding to set aside one discharge and to direct that an honorable one be granted may lie, we should nonetheless halt this irregular procedure in limine. For we are dealing here with the charge of 'conduct unbecoming an officer,' a charge that carries a heavy stigma. As Winthrop said: 'Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.' Military Law and Precedents (2d ed. 1896) 1104.
12
If declaratory relief will be accorded, as it certainly could be (Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 852), this action for an injunction is timely to prevent an injustice. As recently stated: 'We think it must be conceded that any discharge characterized as less than honorable will result in serious injury. It not only means the loss of numerous benefits in both the federal and state systems, but it also results in an unmistakable social stigma which greatly limits the opportunities for both public and private civilian employment.' 110 U.S.App.D.C. 375, 381, 293 F.2d 852, 858.
13
I would reverse the judgment below and direct that appellant be accorded a hearing that comports with the requirements of due process.
*
Which, of course, is a mistaken premise. See Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377; Blake v. United States, 103 U.S. 227, 231, 26 L.Ed. 462.
| 12
|
370 U.S. 49
82 S.Ct. 1209
8 L.Ed.2d 325
Robert Elmer GALLEGOS, Petitioner,v.STATE OF COLORADO.
No. 475.
Argued April 9, 1962.
Decided June 4, 1962.
Rehearing Denied June 25, 1962.
See 370 U.S. 965, 82 S.Ct. 1579.
Charles S. Vigil, Denver, Colo., for petitioner.
John F. Brauer, Jr., Asst. Atty. Gen., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, a child of 14, and another juvenile followed an elderly man to a hotel, got into his room on a ruse, assaulted him, overpowered him, stole $13 from his pockets, and fled. All this happened on December 20, 1958. Petitioner was picked up by the police on January 1, 1959, and immediately admitted the assault and robbery. At that time, however, the victim of the robbery was still alive, though hospitalized. He died on January 26, 1959, and forthwith an information charging first degree murder was returned against petitioner. A jury found him guilty, the crucial evidence introduced at the trial being a formal confession which he signed on January 7, 1959, after he had been held for five days during which time he saw no lawyer, parent or other friendly adult. The Supreme Court of Colorado affirmed the judgment of conviction. 145 Colo. 53, 358 P.2d 1028. We granted the petition for certiorari, 368 U.S. 815, 82 S.Ct. 70, 7 L.Ed.2d 23.
2
After petitioner's arrest on January 1, the following events took place. His mother tried to see him on Friday, January 2, but permission was denied, the reason given being that visiting hours were from 7 p.m. to 8 p.m. on Monday and Thursday. From January 1 through January 7, petitioner was in Junvenile Hall, where he was kept in security, though he was allowed to eat with the other inmates. He was examined by the police in Juvenile Hall January 2, and made a confession which an officer recorded in longhand. On January 3, 1959, a complaint was filed against him in the Juvenile Court by the investigating detectives.
3
The State in its brief calls this preliminary procedure in Juvenile Hall being 'booked in.' As noted, petitioner signed a full and formal confession on January 7. The trial in the Juvenile Court took place January 16 on a petition dated January 13 containing a charge of 'assault to injure.' He was committed to the State Industrial School for an indeterminate period. Thereafter, as noted above, the victim of the robbery died and the murder trial was held.
4
Confessions obtained by 'secret inquisitorial processes' (Chambers v. Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716) are suspect, since such procedures are conducive to the use of physical and psychological pressures. Chambers v. Florida, supra; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. The reason that due process, as used in the Fourteenth Amendment, condemns the obtaining of confessions in that manner is a compound of two influences. First is the procedural requirement stated in Chambers v. Florida, supra, 309 U.S. 236—237, 60 S.Ct. 477:
5
'From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the 'law of the land' evolved the fundamental idea that no man's life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement and tyrannical power. Thus, as assurance against ancient evils, our country, in order to preserve 'the blessings of liberty', wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed.'
6
We emphasized this point in Ashcraft v. Tennessee, 322 U.S. 143, 152, 64 S.Ct. 921, 925, 88 L.Ed. 1192, where we said that 'always evidence concerning the inner details of secret inquisitions is weighted against an accused * * *.'
7
Second is the element of compulsion which is condemned by the Fifth Amendment. Chief Justice Hughes in Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682, emphasized that ingredient of due process. After noting that the Court had held that the exemption from compulsory self-incrimination in the courts of the States is not guaranteed by the Due Process Clause of the Fourteenth Amendment, he went on to say:
8
'But the question of the right of the state to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter.' And see Brennan, The Bill of Rights and the States, 36 N.Y.U.L.Rev. 761.
9
We reiterated that view in Ashcraft v. Tennessee, supra, where we held that the principle in Bram v. United States, 168 U.S. 532, 562—563, 18 S.Ct. 183, 194, 42 L.Ed. 568, was applicable to state proceedings. 322 U.S. at 154, note 9, 64 S.Ct. at 926. We said:
10
'We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its every existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear. It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross examination for thirty-six hours without rest or sleep in an effort to extract a 'voluntary' confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room.' 322 U.S. at 154, 64 S.Ct. at 926. (Italics added.)
11
The application of these principles involves close scrutiny of the facts of individual cases. The length of the questioning (Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265), the use of fear to break a suspect (Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029), the youth of the accused (Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224) are illustrative of the circumstances on which cases of this kind turn. The youth of the suspect was the crucial factor in Haley v. Ohio, supra, at 599—600, 68 S.Ct. at 303:
12
'What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a.m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning. A photographer was admitted once this lad broke and confessed. But not even a gesture towards getting a lawyer for him was ever made.'
13
The fact that petitioner was only 14 years old puts this case on the same footing as Haley v. Ohio, supra. There was here no evidence of prolonged questioning. But the five-day detention—during which time the boy's mother unsuccessfully tried to see him and he was cut off from contact with any lawyer or adult advisor—gives the case an ominous cast. The prosecution says that the boy was advised of his right to counsel, but that he did not ask either for a lawyer or for his parents. But a 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. That is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protest his own interests or how to get the benefits of his constitutional rights.
14
The prosecution says that the youth and immaturity of the petitioner and the five-day detention are irrelevant, because the basic ingredients of the confession came tumbling out as soon as he was arrested. But if we took that position, it would, with all deference, be in callous disregard of this boy's constitutional rights. He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights—from someone concerned with securing him those rights—and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had. To allow this conviction to stand would, in effect, be to treat him as if he had no constitutional rights.
15
There is no guide to the decision of cases such as this, except the totality of circumstances that bear on the two factors we have mentioned. The youth of the petitioner, the long detention, the failure to send for his parents, the failure immediately to bring him before the judge of the Juvenile Court, the failure to see to it that he had the advice of a lawyer or a friend—all these combine to make us conclude that the formal confession on which this conviction may have rested (see Payne v. Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 850, 2 L.Ed.2d 975) was obtained in violation of due process.
16
Reversed.
17
Mr. Justice FRANKFURTER and Mr. Justice WHITE took no part in the consideration or decision of this case.
18
Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
19
As Chief Justice John Marshall said a century and a quarter ago, '(i)f courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined.' Cherokee Nation v. Georgia, 5 Pet. 1, 15, 8 L.Ed. 25 (1831). A 14-year-old boy stands convicted of murder and has been sentenced to imprisonment for life. But, as Mr. Justice Paterson said in Penhallow v. Donane's Admr., 3 Dall. 54, 88—89, 1 L.Ed. 507 (1795), 'motives of commiseration, from whatever source they flow, must not mingle in the administration of justice.'
20
The Court sets aside the conviction here on due process grounds, finding that the formal confession made by petitioner on January 7 was obtained by 'secret inquisitorial processes' and other forms of compulsion. In so doing it turns its back on the spontaneous oral admissions made by petitioner at the time of arrest on January 1, as well as a detailed confession made the next day, all long before the formal confession was given five days later. Moreover, I find nothing in the record that suggests any 'secret inquisitorial processes' were used or any compulsion was exerted upon petitioner even during that longer period. With due deference I cannot see how the Court concludes from the record that petitioner was 'cut off from contact with any lawyer or adult advisor' and 'made accessible only to the police,' that there was a failure to bring him before the juvenile judge in the manner required in juvenile delinquency cases, or that Gallegos' case is in anywise on the same footing with Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), or the other cases cited by the majority.
21
As the Court says, 'the totality of circumstances' is the only guide we have in confession cases. However, in view of the hop, skip, and jump fashion in which the Court deals with them here, I believe it is first necessary to detail the facts.
22
The record through the testimony of Officer Chism, a special juvenile officer, shows that on Thursday evening, January 1, he was investigating the assault on Mr. Smith,1 an 80-year-old man, when he noticed three boys who appeared to fit the description furnished him of the ones involved. The three, who were sitting on the curb outside of Dutchman's Inn, were the Gallegos brothers: petitioner Robert (14), Charles (12), and Richard (8). The officer, who was alone and in street clothes, stopped his car across the street from the inn. He approached the boys, told them he was a police officer, and asked them to come over and sit in his car. They did so and the officer asked them about the Smith assault. Richard orally confessed, and the petitioner 'admitted he had a part in it.' Officer Chism then took the boys to Juvenile Hall where the petitioner again admitted his participation, as did his youngest brother, Richard. Both stated that the third brother, Charles, had nothing to do with the matter, but that their cousin, Eddie Martinez, had accompanied them. Charles, having been cleared of any involvement in the assault, was taken home that very evening by Officer Chism, who told Mrs. Gallagos that the petitioner and Richard were being held at Juvenile Hall and that visiting hours were on Monday and Thursday evenings. He also informed her of her sons' right to counsel.
23
The next evening, January 2, Officer Chism talked to the petitioner, Richard, and Martinez, who by this time was also at Juvenile Hall. As the officer took notes,2 petitioner again described his participation in the assault on Mr. Smith in the following manner as narrated by Officer Chism at the trial:
24
'(After his participation in an assault on a Mr. Kruhd,) he proceeded down to 18th and Curtis Street where he was shining shoes. * * * (U)pon seeing an old man, who was later identified as Robert F. Smith, he followed him to a hotel on 18th street. * * * (H)e * * * was with his younger brother, Richard, and one Eddie Martinez. * * * They followed the old man to the hotel and Richard stayed downstairs and watched out for cops. He and Eddie went upstairs and they lost track of the old man; they asked several if they had seen his grandfather come in, that he had just come in and was drunk * * * (and) a man told * * * (them) he just went down the hallway, and upon knocking on the door a man opened the door and he told him he was looking for his grandfather, that he was drunk, and the man told him the old man next door had just come in. He said upon knocking on the other door someone told him to come in, that he opened the door and he seen it was the man he was looking for. * * * (A)t that time Eddie Martinez asked the old man for a drink of water and when the old man brought the water Eddie grabbed him and he, Robert, hit the old man about the head and face with a shoe brush; that when the old man fell to the floor he took a knife and held it to the old man's throat and took his billfold out (of) his back pocket. * * * (T)hey all left then and went to the Twenty-third Street Viaduct where he gave Eddie $3.00 and he kept $10.00 to split between him and Richard and they then went home * * *.'
25
That same evening, January 2, at 11:30 p.m., Mrs. Gallegos attempted to visit her two sons at Juvenile Hall but was again informed that visiting hours were 7 p.m. to 8 p.m. on Mondays and Thursdays. At the trial she testified that she made no effort to see her sons on the next visiting day, which was Monday, but waited until Thursday, January 8.
26
The record shows that on January 3 the officer filed in the juvenile court a detailed report of the arrest and petitioner's confessions together with a petition charging petitioner with juvenile delinquency. This was supplemented on the 5th by the report of the Kruhd assault and Kruhd's identification of petitioner and the other boys. The officer followed, as he was obliged to do, the juvenile court law of Colorado which provides for commitment in Juvenile Hall, report to the juvenile judge who supervises the Hall and its inmates, and the filing of a delinquency petition.
27
For the first few days at Juvenile Hall petitioner was placed in 'security,' which meant that he did not participate in the school program. The uncontradicted testimony of the Hall Superintendent was that the decision to keep the petitioner out of the program was made by his unit supervisor in order to size up the boy, who had been charged with a serious crime, before placing him in the regular activities with the others. During this time he had all his meals with the other boys and conversed with his younger brother who was held in another ward. Although the petitioner did not testify at the trial in the presence of the jury, he admitted at a hearing held to determine the admissibility of the formal confession that he was only questioned three times between January 1 and January 7 and that no threats or physical coercion was used at any time.
28
On January 7 the police department sent a man over to formalize the earlier confessions. Officer Miller, who took the confession, testified that he told petitioner of the possibility of a murder charge, warned him that he did not have to make a statement, and told him that he could have his parents and an attorney present if he desired. Petitioner indicated that he did not so desire and a formal confession was taken which was substantially identical to the statement given on January 2, as related by Officer Chism in his testimony. The confession was typed, and Officer Chism took it over to Juvenile Hall for petitioner to sign. He testified that petitioner read it aloud before signing it. Above his signature was the admission that the confession was made voluntarily and upon warning that it could be used against him.
29
On January 16 the three assailants were committed to the Industrial School by the juvenile court. Upon the death of Mr. Smith, petitioner on information was tried for murder. As noted above, the evidence included testimony of his admissions upon arrest and his confession on January 2, as well as the formal confession of January 7. These were admitted after independent findings of voluntariness by the trial judge and jury. The latter was instructed that in determining whether petitioner freely and voluntarily made the confessions it was to take into account 'the age, maturity, physical and mental condition of the defendant, the length of his confinement, his opportunity or lack of opportunity to seek friendly or professional aid, the advice or lack of advice given him as to his constitutional rights, and all other facts and circumstances surrounding such confession.'
30
Before discussing the admissibility of the formal confession of January 7, I must first comment on the Court's treatment of the earlier confessions, viz., those of January 1 and 2. Although the Court carefully refrains from holding these confessions inadmissible under due process standards, its innuendo that they were acquired 'in callous disregard of this boy's constitutional rights' cannot pass unexposed. In regard to these confessions, the test of voluntariness as evidenced by the 'totality of circumstances' leads the Court not to question them. Here there were no 'secret inquisitorial processes' or compulsion of any kind as the Court envisions in relation to the confession of January 7. The Court's only criticism is that petitioner 'would have no way of knowing what the consequences of his confession were without advice as to his rights * * *.'3 The truth of the matter is that the singular circumstance pointed out by the Court has never been thought to render a confession inadmissible. See Culombe v. Connecticut, 367 U.S. 568, 577—602, 81 S.Ct. 1860, 1865, 6 L.Ed.2d 1037 (1961) (opinion of Mr. Justice FRANKFURTER).
31
The Court is overturning petitioner's conviction because it flows in part from the formal confession of January 7. I cannot draw from this record a conclusion that this confession was involuntary. Petitioner freely admitted in testimony before the trial judge that he was not threatened or physically coerced in any way and that he was not intensively questioned. Moreover, prior to the formal confession he was told that he did not have to make a statement and warned of the possibility of a murder charge, as well as informed that he could have an attorney and his parents present. Officer Chism's testimony as to this matter was documented by the confession itself which recites that it was voluntary and given after notice that it could be used against him.
32
Petitioner was never placed in solitary confinement, as might be implied from the Court's opinion, but was merely kept out of the organized activities until the unit supervisor could determine whether his full-time participation would have an adverse effect on others. And even under this schedule he had all his meals with the other boys and conversed freely with them.
33
Nor was petitioner 'cut off' from contact with lawyers or adults and 'made accessible only to the police.' His mother made no effort to obtain an attorney although informed of the right to do so.4 And she was not prevented from seeing him but was merely asked to comply with reasonable visiting regulations. She was informed on two occasions that she could see him Monday, January 5, two days before the formal confession which the Court finds invalid, but she did not attempt to do so. And petitioner himself passed up the offer to confer with his parents and an attorney before making this confession.
34
In support of the above factors indicating that the confession of January 7 was voluntary is the undeniable fact that petitioner admitted on January 1 his participation in the assault and confessed in detail thereto on January 2. Both of these statements occurred prior to the events which the Court finds to have coerced the confession of January 7. I am hard pressed to understand how one could conclude that the police found it expedient to coerce the January 7 confession or that the events discussed by the Court rendered it involuntary when five days earlier a substantially identical confession was made in the absence of the 'coercive' events.
35
As I have noted, in light of these facts I cannot conclude that this confession was involuntary. A fortiori, I could not determine, as the Court must, that so clear a case of coercion was made out that three prior findings that the confession was voluntary—including one by the jury which was specifically instructed to consider each of the factors relied on by the majority—can be reversed. I have carefully examined the cases upon which the Court relies and can find not one among them which in the least is apposite. There were no 'secret inquisitorial processes' as in Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). There Chambers, a Negro, for a week after arrest was kept incommunicado, moved from one jail to another, constantly questioned, and was finally subjected to around-the-clock interrogation by a relay of from 4 to 10 persons. Nor does Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954), in any way resemble this case. There the accused had requested a doctor in order to get relief from a painful sinus attack. The police brought in a psychiatrist who by subtle means induced him to confess after an hour or two of questioning. The state court found this confession invalid because of mental coercion. However, at the second trial subsequent confessions were admitted in evidence. This Court held that the psychiatric inducement used to extract the first confession poisoned and invalidated the subsequent ones. Likewise, the reference of the Court to Chief Justice Hughes' statement in Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682 (1936), concerning the 'element of compulsion which is condemned by the Fifth Amendment,' is misleading and inapposite. 'The question in this case,' he said in Brown with his usual conciseness, 'is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States.' Id., at 279, 56 S.Ct. at 462. Brown and the other suspects, the Chief Justice pointed out, had been stripped, laid over chairs and beaten with a leather strap with buckles until their backs were cut to pieces and they confessed. Nor does the holding in Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944), have any bearing on this case. It also involved 'prosecutors serving in relays' keeping a person under continuous cross-examination for 36 hours without rest or sleep. Nor can it, in my view, be said that Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), has any weight under the facts here. In that case continuous, all-night cross-examination by four officers, the refusal of repeated requests to consult his counsel, together with the use of an old friend who was a fledgling police officer as bait to break down the accused, led us to invalidate the confession. And in Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945), the accused was stripped of his clothing and his request for counsel ignored while he remained in solitary confinement and without food until, led to believe that he was going to get a 'shellacking,' he confessed from apparent fear of his jailors. Finally, I see no similarity in Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), the last case cited by the Court. There a 15-year-old boy never before in trouble was questioned 'through the dead of night' by five to six policemen in relays of one or two each and then only was led to confess by being shown alleged statements of two confederates incriminating him. Haley does not indicate that youth alone is sufficient to render a juvenile's confession inadmissible. Here we do not have any of the factors which led to the comment: 'What transpired would make us pause for careful inquiry if a mature man were involved.' Id., at 599, 68 S.Ct. at 303.
36
I regret that without support from prior cases and on the basis of inference and conjecture not supported in the record the Court upsets this conviction.
1
At this time Smith was still alive. He died on January 26, and the murder prosecution here at issue followed.
2
These notes were signed by petitioner.
3
There is no basis for the Court's suggestion that the officers improperly failed to bring petitioner before the juvenile judge when they first arrested him. The procedure used in Denver of filing a report with the juvenile judge and temporarily placing the offender in Juvenile Hall pending a hearing is in keeping with advanced procedures being followed with reference to juvenile offenders throughout the United States.
4
Indeed, no attorney was obtained for petitioner's trial in the juvenile court.
| 01
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370 U.S. 154
82 S.Ct. 1188
8 L.Ed.2d 395
Levert H. TAYLOR et al.v.STATE OF LOUISIANA.
No. 773.
Decided June 4, 1962.
Rehearing Denied June 25, 1962.
See 378 U.S. 965, 82 S.Ct. 1578.
Carl Rachlin and Judith P. Vladeck, for petitioners.
Jack P. F. Gremillion, Atty. Gen. of, Louisiana, and M. E. Culligan, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
Petitioners, six Negroes, were convicted of violating Louisiana's breach-of-the-peace statute, LSA—Rev.Stat.1950, § 14:103.1,1 and were given fines and jail terms by the state court. The Louisiana Supreme Court declined to review their convictions, and the case is here on petition for a writ of certiorari which we have granted.
2
Four of the six petitioners went into the waiting room customarily reserved for white people at the Trailways Bus Depot in Shreveport, Louisiana, in order to take a bus to Jackson, Mississippi. The Chief of Police of Shreveport approached the four and asked them why they were in the station. They told him they were interstate passengers and wished to purchase tickets and obtain travel information. The Chief told them they could do this in the colored waiting room and ordered them to move on. When the four refused to leave, stating again that they were interstate passengers and asserting their rights under federal law, they were ordered to leave or be arrested. The spokesman of the group then said, 'We have no choice; go ahead and arrest us.' The police thereupon arrested the four of them. The other two petitioners were then arrested, while sitting nearby in the automobile which had brought the six to the bus station.
3
At the trial there was testimony that immediately upon petitioners' entry into the waiting room many of the people therein became restless and that some onlookers climbed onto seats to get a better view. Nevertheless, respondent admits these persons moved on when ordered to do so by the police. There was no evidence of violence. The record shows that the petitioners were quiet, orderly, and polite. The trial court said, however, that the mere presence of Negroes in a white waiting room was likely to give rise to a breach of the peace. It held the mere presence of the Negroes in the waiting room, as part of a preconceived plan, was sufficient evidence of guilt. It accordingly held that the four had violated the state breach-of-the-peace statute and that the other two had counseled and procured the others to commit the crime.
4
Here, as in Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, the only evidence to support the charge was that petitioners were violating a custom that segregated people in waiting rooms according to their race, a practice not allowed in interstate transportation facilities by reason of federal law.2 Boynton v. Virginia, 364 U.S. 454, 459—460, 81 S.Ct. 182, 185—186, 5 L.Ed.2d 206. And see Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (public beaches); Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (municipal golf courses); Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (bus); New Orleans City Park Imp. Ass'n v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (municipal golf course and park). The judgments of conviction must therefore be reversed.
5
Reversed.
6
Mr. Justice HARLAN would grant certiorari and set the case for argument.
7
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
1
In relevant part, § 14:103.1 provides: 'A. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: (1) crowds or congregates with others * * * in or upon * * * any * * * public place or building * * * and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer of any municipality * * * in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana * * * shall be guilty of disturbing the peace.'
2
'That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.' Buchanan v. Warley, 245 U.S. 60, 80—81, 38 S.Ct. 16, 20, 62 L.Ed. 149.
| 12
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370 U.S. 114
82 S.Ct. 1196
8 L.Ed.2d 368
C. D. CALBECK, Deputy Commissioner, etc., et al., Petitioners,v.TRAVELERS INSURANCE CO. et al. T. J. DONOVAN, Deputy Commissioner, v. AVONDALE SHIPYARDS, INC., et al.
No. 532.
Argued April 23, 1962.
Decided June 4, 1962.
Solicitor General Archibald Cox for petitioners.
Charles Kohlmeyer, Jr., New Orleans, La., for respondent, Avondale Shipyards, Inc.
Louis V. Nelson, Beaumont, Tex., for respondents, Travelers Ins. Co. and Levingston Shipbuilding Co.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Section 3(a) of the Longshoremen's and Harbor Workers' Compensation Act provides that compensation shall be paid only for injuries occurring on navigable waters 'and if recovery * * * through workmen's compensation proceedings may not validly be provided by State law.'1 In each of these cases the petitioner is a Deputy Commissioner who based an award of compensation under the Act on findings that the employee was engaged at the time of his injury in the work of completing the construction of a vessel afloat on navigable waters.2
2
Before the Longshoremen's Act was passed, this Court has sustained the validity of a state workmen's compensation statute as applied to injuries suffered by an employee engaged in the completion of a launched vessel under construction on navigable waters, Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, but had made clear that state compensation statutes could not, constitutionally, be applied to injuries to employees engaged in repair work on completed vessels on navigable waters.3 The court below interpreted § 3(a) as adopting this distinction and so set aside both awards, thus holding that a shipyard worker's right to compensation under the Act, if his injury is incurred on a vessel, depends not only on whether the vessel is on navigable waters, but also on whether the vessel was under repair rather than under construction. Avondale Shipyards, Inc. v. Donovan, 5 Cir., 293 F.2d 51; Travelers Insurance Co. v. Calbeck, 5 Cir., 293 F.2d 52. We granted certiorari because of the importance of the interpretation of § 3(a) in the administration of the Act. 368 U.S. 946, 82 S.Ct. 389, 7 L.Ed.2d 342. We reverse the judgments of the Court of Appeals and affirm the judgments of the District Courts sustaining the awards.
3
The Court of Appeals' interpretation of § 3(a) would, if correct, have the effect of excepting from the Act's coverage not only the injuries suffered by employees while engaged in ship construction but also any other injuries—even though incurred on navigable waters and so within the reach of Congress—for which a state law could, constitutionally, provide compensation. But the Court of Appeals' interpretation is incorrect. The history of the Act, and of § 3(a) in particular, contravenes it; and our decisions construing § 3(a) have rejected it. Our conclusion is that Congress invoked its constitutional power so as to provide compensation for all injuries sustained by employees on navigable waters4 whether or not a particular injury might also have been within the constitutional reach of a state workmen's compensation law.
4
The Longshoremen's Act was passed in 1927. The Congress which enacted it would have preferred to leave to state compensation laws the matter of injuries sustained by employees on navigable waters within state boundaries. However, in 1917 this Court had decided in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, that the New York Compensation Act could not, constitutionally, be applied to an injury sustained on a gangplank between a vessel and a wharf.5 It was held that the matter was outside state cognizance and exclusively within federal maritime jurisdiction, since to hold otherwise would impair the harmony and uniformity which the constitutional grant to the Federal Government of the admiralty power was meant to assure. While the Court acknowledged that 'it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation,' 244 U.S., at 216, 37 S.Ct. at 529, the opinion appeared to foreclose the application of a state compensation remedy to any maritime injury.
5
The Jensen decision deprived many thousands of employees of the benefits of workmen's compensation. Congress twice attempted to deal with the situation by legislation expressly allowing state compensation statutes to operate. Act of October 6, 1917, 40 Stat. 395; Act of June 10, 1922, 42 Stat. 634. But this Court struck down both statutes as unconstitutional delegations to the States of the legislative power of Congress, and as tending to defeat the purpose of the Constitution to achieve harmony and uniformity in the maritime law. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834; Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646.
6
Meanwhile the Court handed down a number of decisions which appeared to modify Jensen by permitting States to apply their statutes to some maritime injuries. But we must candidly acknowledge that the decisions between 1917 and 1926 produced no reliable determinant of valid state law coverage. In Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, decided in 1921, the Court upheld the jurisdiction of a United States District Court to entertain a libel in admiralty for damages for the death of a longshoreman under a state wrongful death statute. The Court reasoned that while the subject was maritime it was 'local in character' and that application of the state statute 'will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations.' 257 U.S., at 242, 42 S.Ct. at 90.
7
Just a month later the Court decided Grant Smith-Porter Ship Co. v. Rohde, supra, where, as in the cases before us, a shipbuilder's employee was injured while at work on new construction afloat on navigable waters. He recovered a judgment under a libel in admiralty, although Oregon had a state workmen's compensation law which made the remedy thereunder exclusive of all other claims against the employer on account of the injury. This Court reversed that judgment, holding that the accident was among those 'certain local matters regulation of which (by the States) would work no material prejudice to the general maritime law.' 257 U.S., at 477, 42 S.Ct. at 158.
8
No dependable definition of the area—described as 'maritime but local,' or 'of local concern'—where state laws could apply ever emerged from the many cases which dealt with the matter in this and the lower courts. The surest that could be said was that any particular injury might be within the area of 'local concern', depending upon its peculiar facts. In numerous situations state acts were considered inapplicable because they were through to work material prejudice to the characteristic features of the general maritime law, particularly in cases of employees engaged in repair work.6 On the other hand, awards under state compensation acts were sustained in situations wherein the effect on uniformity was often difficult to distinguish from those found to be outside the purview of state laws.7
9
Thus, the problem which confronted Congress in 1927 had two facets. One was that the failure of Congress' attempts to shelter the employees under state compensation laws rendered it certain that for many maritime injuries no compensation remedy was available. The other was that the course of judicial decision had created substantial working uncertainty in the administration of compensation. Congress turned to a uniform federal compensation law as an instrument for dealing with both facets. Indeed, the Court in Dawson had invited such consideration, saying: 'Without doubt Congress has power to alter, amend or revise the maritime law by statutes of general application embodying its will and judgment. This power, we think, would permit enactment of a general Employers' Liability Law or general provisions for compensating injured employees; but it may not be delegated to the several States.' 264 U.S., at 227, 44 S.Ct. at 305.
10
The proposal of a uniform federal compensation act had the unqualified support of both employers and employee representatives. Workmen's compensation had gained wide acceptance throughout the country and State after State was enacting it.8 But hard battles were fought in committee and on the floor in both Houses of Congress over the form of the law. The bill introduced in the Senate, S. 3170, became the basis of the law.
11
There emerges from the complete legislative history9 a congressional desire for a statute which would provide federal compensation for all injuries to employees on navigable waters; in every case, that is, where Jensen might have seemed to preclude state compensation. The statute's framers adopted this scheme in the Act because they meant to assure the existence of a compensation remedy for every such injury,10 without leaving employees at the mercy of the uncertainty, expense, and delay of fighting out in litigation whether their particular cases fell within or without state acts under the 'local concern' doctrine.
12
The gravity of the problem of uncertainty was emphasized when § 3 of S. 3170 in its original form was under discussion at the Senate Hearings. That version of § 3 provided: 'This act shall apply to any employment performed on a place within the admiralty jurisdiction of the United States, except employment of local concern and of no direct relation to navigation and commerce; but shall not apply to employment as master or member of the crew of a vessel.' (Emphasis supplied.) The Chairman of the Senate Committee perceived that to create an exemption for 'employment of local concern' threatened to perpetuate the very uncertainties of coverage that Congress wished to avoid.11 The danger was underlined by objections on behalf of two large employer groups. They not only expressed concern about the practical problems created by the line between new construction and repair, Senate Hearings, at 92—93, but also about the broader implications of the wording: 'This provision is indefinite. The exception of 'employment of local concern and of no direct relation to navigation and commerce' is vague and will be the subject of continual litigation. Innumerable claims will become legal questions requiring determination by the courts.' Senate Hearings, at 95.
13
We are not privy to the Committee deliberations at which it was decided to drop the 'local concern' language from § 3 and substitute the language now in the statute. We think it a reasonable inference that the Committee concluded that the exemption for 'employment of local concern' would defeat the objective of avoiding the uncertainty created by Jensen and its progeny.
14
The action of the House Committee, when S. 3170 as revised in the Senate came before it, discloses similar preoccupations. The House Committee rewrote § 3 to omit both the original 'local concern' language and the Senate substitute.12 A parliamentary obstacle on an unrelated issue led to the House Committee's finally accepting the Senate version.13
15
In sum, it appears that the Longshoremen's Act was designed to ensure that a compensation remedy existed for all injuries sustained by employees on navigable waters, and to avoid uncertainty as to the source, state or federal, of that remedy. Section 3(a) should, then, be construed to achieve these purposes. Plainly, the Court of Appeals' interpretation, fixing the boundaries of federal coverage where the outer limits of state competence had been left by the pre-1927 constitutional decisions, does not achieve them.
16
In the first place, the contours of the 'local concern' concept were and have remained necessarily vague and uncertain. There has never been any method of staking them out except litigation in particular cases.
17
In the second place, to conclude that federal coverage extends to the limits of navigable waters, except in those cases where a state compensation remedy 'may' constitutionally be provided, would mean that, contrary to the congressional purpose, some injuries to employees on navigable waters might not be compensable under any statute. A vacuum would exist as to any injury which, although occurring within the constitutional domain of 'local concern,' was in fact not covered by any state statute. A restriction of federal coverage short of the limits of the maritime jurisdiction could have avoided defeating the objective of assuring a compensation remedy for every injury on navigable waters only if Congress had provided that federal compensation would reach any case not actually covered by a state statute. But in order to have accomplished this result, the statute would have had to withdraw federal coverage, not wherever a state compensation remedy 'may be' validly provided, but only wherever a state compensation remedy 'is' validly provided. Even if a court could properly read 'may be' as meaning 'is,' such a reading would make federal coverage in the 'local concern' area depend on whether or not a state legislature had taken certain action—an intention plainly not to be imputed to a Congress whose recent efforts to leave the matter entirely to the States had twice been struck down as unconstitutional delegations of congressional power.
18
Finally, there would have been no imaginable purpose in carving the area of 'local concern' out of the federal coverage except to leave the greatest possible number of cases exclusively to the States. The price of such an objective would have included the adoption of whatever seemingly anomalous distinctions the courts might have developed in articulating the contours of 'local concern,' as well as the risk of a total failure of compensation in cases within the 'local concern' realm for which no state compensation had been provided. And in any event, a congressional purpose to leave the maximum possible business exclusively to the States would negate the Court of Appeals' reading of the line of demarcation as a static one fixed at pre-1927 constitutional decisions. Such a purpose would require, rather, that federal coverage expand and recede in harness with developments in constitutional interpretation as to the scope of state power to compensate injuries on navigable waters. But that would mean that every litigation raising an issue of federal coverage would raise an issue of constitutional dimension, with all that that implies; and that each and every award of federal compensation would equally be a constitutionally premised denial of state competence in a like situation. We cannot conclude that Congress imposed such a burden on the administration of compensation by thus perpetuating the confusion generated by Jensen. To dispel that confusion was one of the chief purposes of the Longshoremen's Act.
19
We conclude that Congress used the phrase 'if recovery * * * may not validly be provided by State law' in a sense consistent with the delineation of coverage as reaching injuries occurring on navigable waters. By that language Congress reiterated that the Act reached all those cases of injury to employees on navigable waters as to which Jensen, Knickerbocker and Dawson had rendered questionable the availability of a state compensation remedy.14 Congress brought under the coverage of the Act all such injuries whether or not a particular one was also within the constitutional reach of a state workmen's compensation law.15
20
Our previous decisions under the Act are entirely consistent with our conclusion. In Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, an employee of a seller of small boats, maritime supplies and outboard motors, hired primarily as a janitor and porter, was drowned when a boat in which he was riding capsized on the James River off Richmond, Virginia. The boat belonged to a customer of his employer and he and a fellow employee were testing one of the employer's outboard motors for which the boatowner was a prospective purchaser. The Court of Appeals for the Fourth Circuit, 116 F.2d 789, had held that the employee's work was 'so local in character' that Virginia could validly have included it under a state workmen's compensation act, and so had set aside an award to the employee's dependents under the Longshoremen's Act. This Court reversed. We noted that 'it is not doubted that Congress could constitutionally have provided for recovery under a federal statute in this kind of situation. The question is whether Congress has so provided in this statute' in the light of § 3(a). 314 U.S., at 248, 62 S.Ct. at 224. The Court held that § 3(a) did not exclude coverage under the Act, saying: 'There can be no doubt that the purpose of the Act was to provide for federal compensation in the area which the specific decisions referred to (in the Senate Report—Jensen, Knickerbocker, and Dawson—) placed beyond the reach of the states. The proviso permitting recovery only where compensation 'may not validly be provided by State law' cannot be read in a manner that would defeat this purpose.' 314 U.S., at 249—250, 62 S.Ct. at 225. We thus held that whatever may be § 3(a)'s 'subtraction from the scope of the Act,' id., at 249, 62 S.Ct. at 224, the Act's adoption of the Jensen line between admiralty and state jurisdiction as the limit of federal coverage included no exception for matters of 'local concern.'
21
In Davis v. Department of Labor, 317 U.S. 249, 62 S.Ct. 225, 87 L.Ed. 246, a structural steel worker engaged in dismantling a bridge across a navigable river was cutting and stowing dismantled steel in a barge when he fell into the river from the barge and was drowned. His dependents sought compensation under the state act and this Court held that it could be applied. The result was not predicated on the ground that the employment was 'maritime but local,' and so outside the coverage of the Longshoremen's Act. Rather the Court viewed the case as in a 'twilight zone' where the applicability of state law was 'extremely difficult' to determine, and resolved the doubt, of course, in favor of the constitutionality of the application of state law. At the same time, the Court indicated that compensation might also have been sought under the Longshoremen's Act and that an award under that Act in the very same circumstances would have been supportable, pointing out that the Act adopts 'the Jensen line of demarcation.' 317 U.S., at 256, 62 S.Ct. 225. The conclusion that the Longshoremen's Act might have applied without regard to whether the situation might be 'maritime but local' plainly implies a rejection of any reading of § 3(a) to exclude coverage in such situation.
22
The issue in Avondale Marine Ways, Inc., v. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77, was whether compensation was available under the Longshoremen's Act for the death of an employee killed while engaged in the repair of a vessel which was then physically located on land, but on a marine railway. Since a marine railway was considered to be a 'dry dock,' the injury satisfied § 3(a)'s requirement that it occur 'upon * * * navigable waters,' defined in § 3 as 'including any dry dock.' At the same time, since the injury did, in a physical sense, occur on land, there is little doubt that a state compensation act could validly have been applied to it. See State Industrial Commission of State of New York v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933. Nevertheless, this Court affirmed an award of compensation under the Federal Act in a per curiam opinion.
23
The legislative history and our decisions had been read consistently with the views expressed herein by the Court of Appeals for the Fifth Circuit before the decisions in the present cases. Judge Hutcheson said for the court in De Bardeleben Coal Corp. v. Henderson, 142 F.2d 481, 483—484:
24
'Before the Parker case was decided * * * this court, in Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802, 804, announced the view that the federal compensation laws should be liberally construed to cover every case where the injury occurred on navigable waters and where within the rule of (Jensen) * * * the action would have been on admiralty. In that case we said:
25
"The question whether jurisdiction over a maritime tort could be asserted under the compensation laws of the states, or existed exclusively in admiralty, was an important one when the decisions were rendered in the Rohde * * * and other similar cases * * * but since the passage of this act (the Federal Workmen's Compensation Act) the importance of that question has largely disappeared. * * * The elaborate provisions of the Act, viewed in the light of prior Congressional legislation as interpreted by the Supreme Court, leaves no room for doubt, as it appears to us, that Congress intended to exercise to the fullest extent all the power and jurisdiction it had over the subject-matter. * * *'
26
'The Parker case, supra, substantially adopts this view * * *. As the Parker case pointed out, it is not at all necessary now to redetermine the correctness vel non of the Jensen case or of any of (its) brood * * *. It is sufficient to say that Congress intended the compensation act to have a coverage co-extensive with the limits of its authority and that the provision 'if recovery * * * may not validly be provided by State law' was placed in the act not as a relinquishment of any part of the field which Congress could validly occupy but only to save the act from judicial condemnation, by making it clear that it did not intend to legislate beyond its constitutional powers. * * * In the application of the act, therefore, the broadest ground it permits of should be taken. No ground should be yielded to state jurisdiction in cases falling within the principle of the Jensen case merely because the Supreme Court, before the Federal Compensation Law went into effect, did here a little, there a little, chip and whittle Jensen down in the mass of conflicting and contradictory decisions in which it advanced and applied the 'local concern' doctrine to save to employees injured on navigable waters, and otherwise remediless, the remedies state compensation laws afforded them. * * * This is what we held in the Lawson case, what the Supreme Court held in the Parker case, supra. * * *'
27
We turn finally to a question raised only in Donovan v. Avondale Shipyards. The employer contends that the employee accepted benefits under the Louisiana State Compensation Act and that this constitutes an election of remedies which bars prosecution of his claim under the Longshoremen's Act. Compensation payments may be made under the Louisiana Compensation Act without a prior administrative proceeding. Before the federal claim was filed Avondale made payments to the employee for some two years and three months at the maximum rate provided by the Louisiana statute. The employee accepted the checks which bore a notation on their face that they were payments of compensation under the state act. In addition Avondale advanced a substantial sum to the employee to be credited against future compensation payments. Avondale also paid medical expenses for the employee's account in excess of the maximum liability imposed by the Louisiana statute. In the compensation order entered by Deputy Commissioner Donovan under the Longshoremen's Act the full amount of all payments made by the employer was credited against the award, and no impermissible double recovery is possible. We hold that the acceptance of the payments does not constitute an election of the remedy under state law precluding recovery under the Longshoremen's Act. Nothing in the statute requires a contrary result. And we agree that the circumstances do not support a finding of a binding election to look solely to the state law for recovery. Massachusetts Bonding & Insurance Co. v. Lawson, 5 Cir., 149 F.2d 853; Newport News Shipbuilding & Dry Dock Co. v. O'Hearne, 4 Cir., 192 F.2d 968; Western Boat Building Co. v. O'Leary, 9 Cir., 198 F.2d 409.16
28
The judgments of the Court of Appeals are reversed and the judgments of the District Courts are affirmed.
29
It is so ordered.
30
Judgments of Court of Appeals reversed and judgments of District Courts affirmed.
31
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
32
Mr. Justice STEWART, whom Mr. Justice HARLAN joins, dissenting.
33
In the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901—950, 33 U.S.C.A. §§ 901—950, Congress carefully provided for the recovery of benefits only 'if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law.' 33 U.S.C. § 903(a), 33 U.S.C.A. § 903(a). Now, thirty-five years later, the Court concludes that Congress did not really mean what it said. I cannot join in this exercise in judicial legerdemain. I think the statute still means what it says, and what it has always been thought to mean—namely, that there can be no recovery under the Act in cases where the State may constitutionally confer a workmen's compensation remedy. While the result reached today may be a desirable one, it is simply not what the law provides.
34
I seriously doubt whether statutory language as clear as that in 33 U.S.C. § 903(a), 33 U.S.C.A. § 903(a), could ever be ignored in the name of effectuating the supposed 'Congressional desire.' Be that as it may, this particular statutory language does in fact reflect the purpose of Congress, which was only to provide compensation for those whom this Court's decisions had barred from the benefits of state workmen's compensation laws. And at the time of the passage of this federal law the Court had squarely held, as Congress well knew, that state workmen's compensation remedies were constitutionally available to workers who, as in the present cases, were engaged in new ship construction on navigable waters.
35
The Longshoremen's and Harbor Workers' Compensation Act was the culmination of a series of events beginning with this Court's decision in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, which held that the New York Workmen's Compensation Act court not constitutionally be applied to a stevedore unloading a vessel on navigable waters, because to do so would impair the uniformity of the general maritime law. Within five months after the Jensen decision Congress passed legislation which attempted to give injured maritime employees 'the rights and remedies under the workmen's compensation law of any State.' 40 Stat. 395. This legislation was declared unconstitutional as an invalid attempt to delegate federal power to the States. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834. A second statute, 42 Stat. 634, similar in approach to the first, was declared invalid in Washington v. W. C. Dowson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646.
36
Meanwhile, the Court was backing away somewhat from Jensen by recognizing that where the general employment and particular activities connected with an injury or death were local in character, though maritime in nature, state law could provide redress without disturbing the uniformity of the general maritime law. The maritime but local doctrine, first applied in connection with a state wrongful death statute, Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, provided the basis for holding that a state compensation act could be applied to a worker engaged in the construction of a new vessel which, while uncompleted, was afloat on navigable waters. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321.1
37
Against this background Congress made its third and ultimately successful attempt to provide compensation for maritime employees deprived by the Jensen rule of state compensation remedies. Seizing upon a suggestion made by the Court in Washington v. W. C. Dawson & Co., supra, Congress turned its attention in the direction of a uniform federal compensation act. The Longshoremen's and Harbor Workers' Compensation Act was the result. In the previous two attempts to circumvent Jensen Congress had indicated its belief that the compensation remedy could best be supplied by the States. It is obvious that in the new Act Congress did not depart from this basic approach, either by making federal law applicable where state law could apply, or by giving the injured employee a choice of remedies. Congress had simply been informed by decisions of this Court that a compensation remedy could be provided for certain maritime injuries only through a uniform federal law, and the federal legislation was enacted only to fill the gap created by those decisions.
38
The legislative materials connected with the Act fully support this conclusion. It was repeatedly emphasized that the purpose of the Act was to provide a compensation remedy for those who could not obtain such relief under state law. 'If longshoremen could avail themselves of the benefits of State compensation laws, there would be no occasion for this legislation; but, unfortunately, they are excluded from these laws by reason of the character of their employment; and they are not only excluded but the Supreme Court has more than once held that Federal legislation can not, constitutionally, be enacted that will apply State laws to this occupation.' S.Rep.No. 973, 69th Cong., 1st Sess., at 16. 'The committee * * * recommends that this humanitarian legislation be speedily enacted into law so that this class of workers, practically the only class without the benefit of workmen's compensation, may be afforded this protection * * *.' H.R.Rep.No.1190, 69th Cong., 1st Sess., at 3. The chairman of the subcommittee conducting hearings on the bill categorically stated that 'we are proceeding on the theory that these people can not be compensated under the New York compensation law or any other compensation law.' Hearings before a Subcommittee of the Senate Judiciary Committee on S. 3170, 69th Cong., 1st Sess., at 84. Similar statements were made by those who spoke during the committee hearings on the proposed legislation.2 Several witnesses pointed out that the statute applied to but two categories of workers, longshoremen and those involved in ship repair,3 the classes of employees denied relief under state compensation acts by the Jensen case and the decisions which followed it.4
39
The meaning of 33 U.S.C. § 903(a), 33 U.S.C.A. § 903(a), can hardly be deemed a question of first impression. In the thirty-five years since its enactment this provision has been before the Court many times. The Court has consistently said that the Act does not apply to injuries on navigable waters where a State can constitutionally provide a compensation remedy. All the commentators have agreed.5 And the administrators of the Act have so held, specifically with respect to new ship construction.6
40
In order to avoid the harsh results which the uncertainties of this statutory provision could sometimes produce, the Court in Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, developed the theory of the twilight zone. There we reversed a decision of the Washington Supreme Court, 12 Wash.2d 349, 121 P.2d 365, which had held that a State could not constitutionally make a compensation award to the widow of a workmen drowned in a navigable river while dismantling a drawbridge. Relying on the language of § 903(a) the Court pointed out that 'Congress made clear its purpose to permit state compensation protection whenever possible * * *.' Id., at 252—253, 63 S.Ct. at 227. The Court went on to note that harbor workers and longshoremen were clearly protected by the Federal Act but that 'employees such as decedent here, occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation.' It was noted that both the Federal Act and the state compensation statute 'show clearly that neither was intended to encroach on the field occupied by the other.' Id., at 255, 63 S.Ct. at 229. Since this 'jurisdictional dilemma' made it difficult for an injured worker to determine on which side of the line his particular case fell, the result in some cases had been that he obtained no compensation at all. In this 'twilight zone' where the facts of a given case might place an injured worker on either side of the line, the Court held that it would give great weight to the administrative findings in cases brought under the Federal Act, and to the presumption of constitutionality in cases arising under state statutes. Because of this presumption of constitutionality the claimant in Davis was allowed her state remedy.7
41
Whatever else may be said of the Davis decision, it thus clearly rested on a construction of the statute precisely opposite to that adopted by the Court today. Indeed, if today's decision is correct, then there was no reason for the 'twilight zone' doctrine worked out with such travail in Davis. For the Court now holds that the problem which led to the Davis decision never really existed. Yet as recently as 1959 the Court began a per curiam opinion with this topic sentence: 'By its terms, the Longshoremen's and Harbor Workers' Compensation Act does not apply 'if recovery for the disability or death through workmen's compensation proceedings may * * * validly be provided by State law." Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292. Today the Court simply removes these 'terms' from the Act.8
42
In my view the decision of the Court of Appeals in these cases was correct. For almost forty years it has been unequivocally recognized that for those employed on new ship construction recovery for disability or death through workmen's compensation may validly be provided by state law. Grant Smith-Porter Ship Co. v. Rohde, supra. In one of the cases before us the claimant has actually been paid benefits under the Louisiana Compensation Act. In the other a claim under the Texas Act is pending and would clearly be allowed. See Travelers Ins. Co. v. Gonzalez, Tex.Civ.App., 351 S.W.2d 374. These cases, therefore, were not by any stretch of the imagination within the twilight zone. The Federal Act is thus by its terms inapplicable.
43
I would affirm.
1
The Act, 44 Stat. 1424, as amended, is comprised in 33 U.S.C. §§ 901—950, 33 U.S.C.A. §§ 901—950, Section 3(a), 33 U.S.C. § 903(a), 33 U.S.C.A. § 903(a) reads:
'(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of—
'(1) A master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or
'(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof.'
2
In the Calbeck case the employee, Roger McGuyer, was a welder in the employ of the Levingston Shipbuilding Company which owns and operates a shipyard on the navigable Sabine River, between Orange, Texas, and Calcasieu Parish, Louisiana. McGuyer worked both on the repair of completed vessels and on vessels under construction. He was injured while working on an uncompleted drilling barge which had been launched and was floating on the Sabine River while its superstructure was under construction.
In the Donovan case the employee, Minus Aizen, was also a welder. His employer was Avondale Marine Ways, Inc., which operated two shipyards near New Orleans. Aizen had worked only on new construction although fellow employees worked both on new construction and on repair work. He was injured while welding on an oil drilling barge which had been launched and was floating on the navigable waters of the Mississippi River while her construction was being completed.
3
See Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756; Gonsalves v. Morse Dry Dock & Repair Co., 266 U.S. 171, 45 S.Ct. 39, 69 L.Ed. 228; Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372. See also Baizley Iron Works v. Span, 281 U.S. 222, 230—232, 50 S.Ct. 306, 307—308, 74 L.Ed. 819.
4
Our use of the term 'employees' throughout this opinion excludes those special categories described in subsections (1) and (2) of § 3(a), see note 1, supra; and assumes that they are employed by an 'employer' as defined in § 2(4), 33 U.S.C. § 902(4), 33 U.S.C.A. § 904(4), i.e., 'an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).'
5
The constitutionality of the New York statute in other respects was sustained at the same Term. New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667. The validity of the Washington and Iowa statutes was also upheld. Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685; Hawkins v. Bleakly, 243 U.S. 210, 37 S.Ct. 255, 61 L.Ed. 678.
6
See, e.g., Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756; Gonsalves v. Morse Dry Dock & Repair Co., 266 U.S. 171, 45 S.Ct. 39, 69 L.Ed. 228; Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372.
7
See, e.g., State Industrial Commission of State of New York v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933; Millers' Indemnity Underwriters v. Braud, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470.
8
See 1 Larson, The Law of Workmen's Compensation, §§ 4.10 5.30.
9
Hearings before the Senate Judiciary Committee on S. 3170, 69th Cong., 1st Sess.; Hearings before the House Judiciary Committee on S. 3170, 69th Cong., 1st Sess.; S.Rep. No. 973, 69th Cong., 1st Sess.; H.R.Rep. No. 1767, 69th Cong., 2d Sess. See also H.R.Rep. No. 1190, 69th Cong., 1st Sess. (accompanying H.R. 12063); Hearings before the House Judiciary Committee on H.R. 9498, 69th Cong., 1st Sess.
10
See S.Rep. No. 973, 69th Cong., 1st Sess., at 16:
for compensation, in the stead of liability,
'The purpose of this bill is to provide for a class of employees commonly known as 'longshoremen.' These men are mainly employed in loading, unloading, refitting, and repairing ships; but it should be remarked that injuries occurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States. There are in the neighborhood of 300,000 men so employed in the entire country.
'The committee deems it unnecessary to comment upon the modern change in the relation between employers and employees establishing systems of compensation as distinguished from liability. Nearly every State in the Union has a compensation law through which employees are compensated for injuries occurring in the course of their employment without regard to negligence on the part of the employer or contributory negligence on the part of the employee. If longshoremen could avail themselves of the benefits of State compensation laws, there would be no occasion for this legislation; but, unfortunately, they are excluded from these laws by reason of the character of their employment; and they are not only excluded but the Supreme Court has more than once held that Federal legislation can not, constitutionally, be enacted that will apply State laws to this occupation. (Southern Pacific Co. v. Jensen, 244 U.S. 205 (37 S.Ct. 524, 61 L.Ed. 1086); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (40 S.Ct. 438, 64 L.Ed. 834); Washington v. (W.C.) Dawson & Co., 264 U.S. 219 (44 S.Ct. 302, 68 L.Ed. 646)).
'It thus appears that there is no way of giving to these hardworking men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation without enacting a uniform compensation statute.'
To like effect is H.R.Rep. No. 1190, 69th Cong., 1st Sess., at 1, 3:
'This bill provides compensation for employees injured * * * in certain maritime employments * * *. The principal wage earners provided for are longshoremen * * *. Next in importance are the ship repairmen—carpenters, painters, boiler makers, etc. Congressional action is necessary if these wage earners are to be given the benefits of workmen's compensation owing to the provisions of
the Constitution of the United States and the decisions of the Supreme Court thereunder. * * * The committee * * * recommends that this humanitarian legislation be speedily enacted into law so that this class of workers, practically the only class without the benefit of workmen's compensation, may be afforded this protection, which has come to be almost universally recognized as necessary in the interest of social justice between employer and employee.'
H.R.Rep. No. 1767, 69th Cong., 2d Sess., at 20, makes clear that the House was desirous of legislation whereby Congress could 'discharge its obligation to the maritime workers placed under their jurisdiction by the Constitution of the United States by providing for them a law whereby they may receive the benefits of workmen's compensation and thus afford them the same remedies that have been provided by legislation for those killed or injured in the course of their employment in nearly every State in the Union.'
11
The following colloquy occurred between the Chairman, Senator Cummins, and an employer spokesman who was testifying:
'The CHAIRMAN. That term (employment of local concern) was used in one of the decisions of the Supreme Court, probably, but, in its application, just what does it mean?
'Mr. BROWN. Unless there is something in connection with admiralty law which qualifies it, I should say it is a very vague thing, and we can not understand what it means. The phrase 'of no direct relation to navigation and commerce' is another questionable proposition, whether the coverage of this bill might not apply to a man on the docks. Some of my friends seem to think that it would not apply to the man on the docks, that the State laws now apply, and it was said in the same decision (the witness referred to Rohde, supra, but the quoted language is found in Nordenholt, supra, note 7, (259 U.S.) at 276 (42 S.Ct. 473)):
'There is no pertinent Federal statute and application of a local law will not work material prejudice to any characteristic feature of the maritime law.
'The CHAIRMAN. We certainly can find some language that will describe these people that we intend to protect, but I am not sure whether this is the most accurate language that can be found.
'Mr. BROWN. I think that is true. I think that you could not only find language that would prescribe the coverage accurately, but I think that language could be devised that would be eminently satisfactory to everybody in (an) act that would incorporate the purposes which are, perhaps, behind this.' Senate Hearings, at 57.
12
Section 3 as redrafted by the House Committee, H.R.Rep. No. 1767, 69th Cong., 2d Sess., at 2, was as follows:
'Sec. 3. This act shall apply to any maritime employment performed—
'(a) Upon the navigable waters of the United States, including any dry dock; or
'(b) As master or member of a crew of a barge, lighter, tug, dredge, vessel, or other ocean, lake, river, canal, harbor, or floating craft owned by a citizen of the United States.'
13
The House Committee could not obtain a rule from the House Rules Committee until it amended the bill to exclude seamen from coverage. 68 Cong.Rec. 5410, 5412. Rather than rewrite § 3 again the Committee adopted the Senate version. See id., 5403 5404, 5410, 5412, explaining that the effect was to exclude seamen from coverage.
14
The Committee reports, note 10, supra, make no reference to the 'local concern' doctrine or the cases applying it. They explain the problem in terms of the limitations on the availability of state remedies imposed by the Court's decisions in Jensen, Knickerbocker, and Dawson.
15
We attach no significance to Opinion No. 7, September 2, 1927, of the Employees' Compensation Commission (now the Bureau of Employees' Compensation) stating that the Commission 'will take no action under the longshoremen's act against an employer engaged only in the construction of vessels who does not comply with the act, nor against any employer engaged in the construction and repair of vessels who secures payment of compensation to employees while employed on repair work on a vessel in a dry dock or on marine ways.' The Department was not foreclosed in the instant cases from changing an interpretation of the statute which was clear error. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746.
16
Section 5 of the Longshoremen's Act, 33 U.S.C. § 905, 33 U.S.C.A. § 905, which makes liability under the Act 'exclusive * * * of all other liability * * * to the employee, his legal representative * * * and anyone otherwise entitled to recover damages * * * at law or in admiralty * * *' is not involved in this case.
1
During this same period the Court consistently held that the principles of Jensen prohibited the application of state compensation laws to workers engaged in the repair of existing vessels. Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372; Gonsalves v. Morse Dry Dock & Repair Co., 266 U.S. 171, 45 S.Ct. 39, 69 L.Ed. 228; Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756.
2
Hearings before the House Judiciary Committee on H.R. 9498, 69th Cong., 1st Sess., at 39, 118; Hearings before a Subcommittee of the Senate Judiciary Committee on S. 3170, 69th Cong., 1st Sess., at 22, 25—27, 31, 38, 85.
3
Hearings before the House Judiciary Committee on S. 3170, 69th Cong., 1st Sess., at 141; Hearings before the House Judiciary Committee on H.R. 9498, 69th Cong., 1st Sess., at 44, 119; Hearings before a Subcommittee of the Senate Judiciary Committee on S. 3170, 69th Cong., 1st Sess., at 80.
4
The Court places heavy reliance on the deletion of the so-called 'local concern' language from the original bill pointing out that this language had been objected to as vague and uncertain. But it is apparent that the objections went to the possibility that the language 'except employment of local concern and of no direct relation to navigation and commerce' might not accurately define the line beyond which state law could be applied a difficulty which was easily removed by making the statute inapplicable where a remedy could 'validly be provided by State law.'
5
See Gilmore and Black, Admiralty, 346; Robinson, Admiralty, 110; Rodes, Workmen's Compensation for Maritime Employees: Obscurity in the Twilight Zone, 68 Harv.L.Rev. 637, 638 639; Morrison, Workmen's Compensation and the Maritime Law, 38 Yale L.J. 472, 500; Comment, 67 Yale L.J. 1205, 1210—1211.
6
See Opinion No. 7, September 2, 1927, of the Employees' Compensation Commission, discussed in n. 15 of the Court's opinion, 370 U.S. p. 127, 82 S.Ct., p. 1203. This ruling was followed until 1959, a span of thirty-two years.
7
To achieve the result reached in Davis after today's decision would require the Court to ignore still another provision of the Federal Act—s 905—which makes federal compensation the exclusive remedy when the Federal Act is clearly applicable.
8
The Court's opinion places heavy reliance on Parker v. Motor Boat Sales, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184. I cannot understand why. For in Parker the Court recognized that the proviso in § 903(a) was 'a subtraction from the scope of the Act.' Id., at 249, 62 S.Ct. at 224. The Court today holds to the contrary. trary. Moreover, any possible doubt as to the basis of the Parker decision was resolved in Davis, where the Court explained Parker in terms of the twilightzone rule. 317 U.S., at 257, 62 S.Ct. 225.
| 78
|
370 U.S. 65
82 S.Ct. 1190
8 L.Ed.2d 335
UNITED STATES, Petitioner,v.Thomas Crawley DAVIS et al. Thomas Crawley DAVIS et al., Petitioners, v. UNITED STATES.
Nos. 190, 268.
Argued March 28, 1962.
Decided June 4, 1962.
I. Henry Kutz and Harold C. Wilkenfeld, Washington, D.C., for petitioner in No. 190 and for respondent in No. 268.
Converse Murdoch, Philadelphia, Pa., for respondents in No. 190 and for petitioners in No. 268.
Mr. Justice CLARK delivered the opinion of the Court.
1
These cases involve the tax consequences of a transfer of appreciated property by Thomas Crawley Davis1 to his former wife pursuant to a property settlement agreement executed prior to divorce, as well as the deductibility of his payment of her legal expenses in connection therewith. The Court of Claims upset the Commissioner's determination that there was taxable gain on the transfer but upheld his ruling that the fees paid the wife's attorney were not deductible. 152 Ct.Cl. 805, 287 F.2d 168. We granted certiorari on a conflict in the Courts of Appeals and the Court of Claims on the taxability of such transfers.2 368 U.S. 813, 82 S.Ct. 60, 7 L.Ed.2d 21. We have decided that the taxpayer did have a taxable gain on the transfer and that the wife's attorney's fees were not deductible.
2
In 1954 the taxpayer and his then wife made a voluntary property settlement and separation agreement calling for support payments to the wife and minor child in addition to the transfer of certain personal property to the wife. Under Delaware law all the property transferred was that of the taxpayer, subject to certain statutory marital rights of the wife including a right of intestate succession and a right upon divorce to a share of the husband's property.3 Specifically as a 'division in settlement of their property' the taxpayer agreed to transfer to his wife, inter alia, 1,000 shares of stock in the E. I. du Pont de Nemours & Co. The then Mrs. Davis agreed to accept this division 'in full settlement and satisfaction of any and all claims and rights against the husband whatsoever (including but not by way of limitation, dower and all rights under the laws of testacy and intestacy) * * *.' Pursuant to the above agreement which had been incorporated into the divorce decree, one-half of this stock was delivered in the tax year involved, 1955, and the balance thereafter. Davis' cost basis for the 1955 transfer was $74,775.37, and the fair market value of the 500 shares there transferred was $82,250. The taxpayer also agreed orally to pay the wife's legal expenses, and in 1955 he made payments to the wife's attorney, including $2,500 for services concerning tax matters relative to the property settlement.
I.
3
The determination of the income tax consequences of the stock transfer described above is basically a two-step analysis: (1) Was the transaction a taxable event? (2) If so, how much taxable gain resulted therefrom? Originally the Tax Court (at that time the Board of Tax Appeals) held that the accretion to property transferred pursuant to a divorce settlement could not be taxed as capital gain to the transferor because the amount realized by the satisfaction of the husband's marital obligations was indeterminable and because, even if such benefit were ascertainable, the transaction was a nontaxable division of property. Mesta v. Commissioner, 42 B.T.A. 933 (1940); Halliwell v. Commissioner, 44 B.T.A. 740 (1941). However, upon being reversed in quick succession by the Courts of Appeals of the Third and Second Circuits, Commissioner of Internal Revenue v. Mesta, 123 F.2d 986 (C.A.3d Cir. 1941); Commissioner of Internal Revenue v. Halliwell, 131 F.2d 642 (C.A.2d Cir. 1942), the Tax Court accepted the position of these courts and has continued to apply these views in appropriate cases since that time, Hall v. Commissioner, 9 T.C. 53 (1947); Patino v. Commissioner, 13 T.C. 816 (1949); Estate of Stouffer v. Commissioner, 30 T.C. 1244 (1958); King v. Commissioner, 31 T.C. 108 (1958); Marshman v. Commissioner, 31 T.C. 269 (1958). In Mesta and Halliwell the Courts of Appeals reasoned that the accretion to the property was 'realized' by the transfer and that this gain could be measured on the assumption that the relinquished marital rights were equal in value to the property transferred. The matter was considered settled until the Court of Appeals for the Sixth Circuit, in reversing the Tax Court, ruled that, although such a transfer might be a taxable event, the gain realized thereby could not be determined because of the impossibility of evaluating the fair market value of the wife's marital rights. Commissioner of Internal Revenue v. Marshman, 279 F.2d 27 (1960). In so holding that court specifically rejected the argument that these rights could be presumed to be equal in value to the property transferred for their release. This is essentially the position taken by the Court of Claims in the instant case.
II.
4
We now turn to the threshold question of whether the transfer in issue was an appropriate occasion for taxing the accretion to the stock. There can be no doubt that Congress, as evidenced by its inclusive definition of income subject to taxation, i.e., 'all income from whatever source derived, including * * * (g)ains derived from dealings in property,'4 intended that the economic growth of this stock be taxed. The problem confronting us is simply when is such accretion to be taxed. Should the economic gain be presently assessed against taxpayer, or should this assessment await a subsequent transfer of the property by the wife? The controlling statutory language, which provides that gains from dealings in property are to be taxed upon 'sale or other disposition,'5 is too general to include or exclude conclusively the transaction presently in issue. Recognizing this, the Government and the taxpayer argue by analogy with transactions more easily classified as within or without the ambient of taxable events. The taxpayer asserts that the present disposition is comparable to a nontaxable division of property between two co-owners,6 while the Government contends it more resembles a taxable transfer of property in exchange for the release of an independent legal obligation. Neither disputes the validity of the other's starting point.
5
In support of his analogy the taxpayer argues that to draw a distinction between a wife's interest in the property of her husband in a common-law jurisdiction such as Delaware and the property interest of a wife in a typical community property jurisdiction would commit a double sin; for such differentiation would depend upon 'elusive subtle casuistries which * * * possess no relevance for tax purposes,' Helvering v. Hallock, 309 U.S. 106, 118, 60 S.Ct. 444, 450, 84 L.Ed. 604 (1940), and would create disparities between common-law and community property jurisdictions in contradiction to Congress' general policy of equality between the two. The taxpayer's analogy, however, stumbles on its own premise, for the inchoate rights granted a wife in her husband's property by the Delaware law do not even remotely reach the dignity of co-ownership. The wife has no interest—passive or active—over the management or disposition of her husband's personal property. Her rights are not descendable, and she must survive him to share in his intestate estate. Upon dissolution of the marriage she shares in the property only to such extent as the court deems 'reasonable.' 13 Del.Code Ann. § 1531(a). What is 'reasonable' might be ascertained independently of the extent of the husband's property by such criteria as the wife's financial condition, her needs in relation to her accustomed station in life, her age and health, the number of children and their ages, and the earning capacity of the husband. See, e.g., Beres v. Beres, 2 Storey 133, 52 Del. 133, 154 A.2d 384 (1959).
6
This is not to say it would be completely illogical to consider the shearing off of the wife's rights in her husband's property as a division of that property, but we believe the contrary to be the more reasonable construction. Regardless of the tags, Delaware seems only to place a burden on the husband's property rather than to make the wife a part owner thereof. In the present context the rights of succession and reasonable share do not differ significantly from the husband's obligations of support and alimony. They all partake more of a personal liability of the husband than a property interest of the wife. The effectuation of these marital rights may ultimately result in the ownership of some of the husband's property as it did here, but certainly this happenstance does not equate the transaction with a division of property by co-owners. Although admittedly such a view may permit different tax treatment among the several States, this Court in the past has not ignored the differing effects on the federal taxing scheme of substantive differences between community property and common-law systems. E.g., Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239 (1930). To be sure Congress has seen fit to alleviate this disparity in many areas, e.g., Revenue Act of 1948, 62 Stat. 110, but in other areas the facts of life are still with us.
7
Our interpretation of the general statutory language is fortified by the long-standing administrative practice as sounded and formalized by the settled state of law in the lower courts. The Commissioner's position was adopted in the early 40's by the Second and Third Circuits and by 1947 the Tax Court had acquiesced in this view. This settled rule was not disturbed by the Court of Appeals for the Sixth Circuit in 1960 or the Court of Claims in the instant case, for these latter courts in holding the gain indeterminable assumed that the transaction was otherwise a taxable event. Such unanimity of views in support of a position representing a reasonable construction of an ambiguous statute will not lightly be put aside. It is quite possible that this notorious construction wsa relied upon by numerous taxpayers as well as the Congress itself, which not only refrained from making any changes in the statutory language during more than a score of years but re-enacted this same language in 1954.
III.
8
Having determined that the transaction was a taxable event, we now turn to the point on which the Court of Claims balked, viz., the measurement of the taxable gain realized by the taxpayer. The Code defines the taxable gain from the sale or disposition of property as being the 'excess of the amount realized therefrom over the adjusted basis * * *.' I.R.C. (1954) § 1001(a). The 'amount realized' is further defined as 'the sum of any money received plus the fair market value of the property (other than money) received.' I.R.C. (1954) § 1001(b). In the instant case the 'property received' was the release of the wife's inchoate marital rights. The Court of Claims, following the Court of Appeals for the Sixth Circuit, found that there was no way to compute the fair market value of these marital rights and that it was thus impossible to determine the taxable gain realized by the taxpayer. We believe this conclusion was erroneous.
9
It must be assumed, we think, that the parties acted at arm's length and that they judged the marital rights to be equal in value to the property for which they were exchanged. There was no evidence to the contrary here. Absent a readily ascertainable value it is accepted practice where property is exchanged to hold, as did the Court of Claims in Philadelphia Park Amusement Co. v. United States, 126 F.Supp. 184, 189, 130 Ct.Cl. 166, 172 (1954), that the values 'of the two properties exchanged in an arms-length transaction are either equal in fact or are presumed to be equal.' Accord, United States v. General Shoe Corp., 282 F.2d 9 (C.A.6th Cir. 1960); International Freighting Corp. v. Commissioner, 135 F.2d 310 (C.A.2d Cir. 1943). To be sure there is much to be said of the argument that such an assumption is weakened by the emotion, tension and practical necessities involved in divorce negotiations and the property settlements arising therefrom. However, once it is recognized that the transfer was a taxable event, it is more consistent with the general purpose and scheme of the taxing statutes to make a rough approximation of the gain realized thereby than to ignore altogether its tax consequences. Cf. Helvering v. Safe Deposit & Trust Co., 316 U.S. 56, 67, 62 S.Ct. 925, 930, 86 L.Ed. 1266 (1942).
10
Moreover, if the transaction is to be considered a taxable event as to the husband, the Court of Claims' position leaves up in the air the wife's basis for the property received. In the context of a taxable transfer by the husband,7 all indicia point to a 'cost' basis for this property in the hands of the wife.8 Yet under the Court of Claims' position her cost for this property, i.e., the value of the marital rights relinquished therefor, would be indeterminable, and on subsequent disposition of the property she might suffer inordinately over the Commissioner's assessment which she would have the burden of proving erroneous, Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 468, 79 S.Ct. 1270, 3 L.Ed.2d 1360 (1959). Our present holding that the value of these rights is ascertainable eliminates this problem; for the same calculation that determines the amount received by the husband fixes the amount given up by the wife, and this figure, i.e., the market value of the property transferred by the husband, will be taken by her as her tax basis for the property received.
11
Finally, it must be noted that here, as well as in relation to the question of whether the event is taxable, we draw support from the prior administrative practice and judicial approval of that practice. See 370 U.S., p. 71, 82 S.Ct., p. 1193, supra. We therefore conclude that the Commissioner's assessment of a taxable gain based upon the value of the stock at the date of its transfer has not been shown erroneous.9
IV.
12
The attorney-fee question is much simpler. It is the customary practice in Delaware for the husband to pay both his own and his wife's legal expenses incurred in the divorce and the property settlement. Here petitioner paid $5,000 of such fees in the taxable year 1955 earmarked for tax advice in relation to the property settlement. One-half of this sum went to the wife's attorney. The taxpayer claimed that under § 212(3) of the 1954 Code, 26 U.S.C.A. § 212(3), which allows a deduction for the 'ordinary and necessary expenses paid * * * in connection with the determination, collection, or refund of any tax,' he was entitled to deduct the entire $5,000. The Court of Claims allowed the $2,500 paid taxpayer's own attorney but denied the like amount paid the wife's attorney. The sole question here is the deductibility of the latter fee; the Government did not seek review of the amount taxpayer paid his own attorney, and we intimate no decision on that point. As to the deduction of the wife's fees, we read the statute, if applicable to this type of tax expense, to include only the expenses of the taxpayer himself and not those of his wife. Here the fees paid her attorney do not appear to be 'in connection with the determination, collection, or refund' of any tax of the taxpayer. As the Court of Claims found, the wife's attorney 'considered the problems from the standpoint of his client alone. Certainly then it cannot be said that * * * (his) advice was directed to plaintiff's tax problems * * *.' 152 Ct.Cl 805, 287 F.2d, at 171. We therefore conclude, as did the Court of Claims, that those fees were not a deductible item to the taxpayer.
13
Reversed in part and affirmed in part.
14
Mr. Justice FRANKFURTER took no part in the decision of these cases.
15
Mr. Justice WHITE took no part in the consideration or decision of these cases.
1
Davis' present wife, Grace Ethel Davis, is also a party to these proceedings because a joint return was filed in the tax year in question.
2
The holding in the instant case is in accord with Commissioner of Internal Revenue v. Marshman, 279 F.2d 27 (C.A.6th Cir. 1960), but is contra to the holdings in Commissioner of Internal Revenue v. Halliwell, 131 F.2d 642 (C.A.2d Cir. 1942), and Commissioner of Internal Revenue v. Mesta, 123 F.2d 986 (C.A.3d Cir. 1941).
3
12 Del.Code Ann. (Supp.1960) § 512; 13 Del.Code Ann. § 1531. In the case of realty, the wife in addition to the above has rights of dower. 12 Del.Code Ann. §§ 502, 901, 904, 905.
4
Internal Revenue Code of 1954, § 61(a), 26 U.S.C.A. § 61(a).
5
Internal Revenue Code of 1954, §§ 1001, 1002, 26 U.S.C.A. §§ 1001, 1002.
6
Any suggestion that the transaction in question was a gift is completely unrealistic. Property transferred pursuant to a negotiated settlement in return for the release of admittedly valuable rights is not a gift in any sense of the term. To intimate that there was a gift to the extent the value of the property exceeded that of the rights released not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement problem discussed in Part III, infra, 370 U.S., p. 71, 82 S.Ct., p. 1194. Cases in which this Court has held transfers of property in exchange for the release of marital rights subject to gift taxes are based not on the premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts. Merrill v. Fahs, 324 U.S. 308, 65 S.Ct. 655, 89 L.Ed. 963 (1945); Commissioner of Internal Revenue v. Wemyss, 324 U.S. 303, 65 S.Ct. 652, 89 L.Ed. 958 (1945); see Harris v. Commissioner, 340 U.S. 106, 71 S.Ct. 181, 95 L.Ed. 111 (1950). In interpreting the particular income tax provisions here involved, we find ourselves unfettered by the language and considerations ingrained in the gift and estate tax statutes. See Farid-EsSultaneh v. Commissioner, 160 F.2d 812 (C.A.2d Cir. 1947).
7
Under the present administrative practice, the release of marital rights in exchange from property or other consideration is not considered a taxable event as to the wife. For a discussion of the difficulties confronting a wife under a contrary approach, see Taylor and Schwartz, Tax Aspects of Marital Property Agreements, 7 Tax L.Rev. 19, 30 (1951); Comment, The Lump Sum Divorce Settlement as a Taxable Exchange, 8 U.C.L.A.L.Rev. 593, 601—602 (1961).
8
Section 1012 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 1012 provides that: 'The basis of property shall be the cost of such property, except as otherwise provided in this subchapter and subchapters C (relating to corporate distributions and adjustments), K (relating to partners and partnerships), and P (relating to capital gains and losses). * * *'
9
We do not pass on the soundness of the taxpayer's other attacks upon this determination, for these contentions were not presented to the Commissioner or the Court of Claims.
| 1112
|
370 U.S. 76
82 S.Ct. 1168
8 L.Ed.2d 345
LEHIGH VALLEY COOPERATIVE FARMERS, INC., et al., Petitioners,v.UNITED STATES et al.
No. 79.
Argued Jan. 17 and 18, 1962.
Decided June 4, 1962.
Willis F. Daniels, Harrisburg, Pa., for petitioners.
Alan S. Rosenthal, Washington, D.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioners, operating milk processing plants in Pennsylvania, challenge the validity of certain 'compensatory payment' provisions included in milk marketing orders affecting the New York-New Jersey area, which were promulgated by the Secretary of Agriculture under the authority granted him by § 8c of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 608c, 7 U.S.C.A. § 608c. That section permits the Secretary to issue regional regulations governing, in various enumerated respects, the marketing of certain agricultural commodities, among which is milk. This provision in question requires those who buy milk elsewhere and bring it into the region for sale as fluid milk to pay to the farmers who supply the region a fixed amount as a 'compensatory payment.' This amount is measured by the difference between the minimum price set by the Market Administrator for fluid milk and the minimum price for surplus milk. The judgment of the Court of Appeals for the Third Circuit, 287 F.2d 726, upholding the validity of the 'compensatory payment' provision here under attack,1 conflicted with an earlier decision rendered by the Court of Appeals for the Second Circuit, Kass v. Brannan, 196 F.2d 791. To resolve this conflict we granted certiorari. 366 U.S. 957, 81 S.Ct. 1919, 6 L.Ed.2d 1251.
I.
The General Scheme of Milk Regulation.
2
The order around which the present controversy centers, now titled Milk Marketing Order No. 2, 7 CFR §§ 1002.1 et seq.,2 though somewhat more complex than others, is in its general outline representative of the pattern of regulation established by the Secretary for the promotion of orderly marketing conditions in the milk industry and the preservation of minimum prices for farmers. Pursuant to the authority granted by § 8c(5)(A),3 the Order classifies milk that is sold within the New York-New Jersey marketing area 'in accordance with the form in which or the purpose for which it is used.' Milk that contains 3% to 5% butterfat—the usual proportion in ordinary liquid milk—and is sold for fluid consumption is assigned to Class I. Milk that is used for cream (sweet and sour), half and half, or milk drinks containing less than 3% or more than 5% butterfat is classified in Class II. The remainder—milk that is to be stored for a substantial period and used for dairy products such as butter and cheese—is grouped in Class III. 7 CFR § 1002.37.
3
This classification reflects the relative prices usually commanded by the different forms of milk. Thus, highest prices are paid for milk used for fluid consumption, and the lowest for milk which is to be processed into butter and cheese. Since the supply of milk is always greater than the demands of the fluid-milk market, the excess must be channeled to the less desirable, lower-priced outlets. It is in order to avoid destructive competition among milk producers for the premium outlets that the statute authorizes the Secretary to devise a method whereby uniform prices are paid by milk handlers to producers for all milk received, regardless of the form in which it leaves the plant and its ultimate use. Adjustments are then made among the handlers so that each eventually pays out-of-pocket an amount equal to the actual utilization value of the milk he has bought.
4
Under the Marketing Order here in question it is primarily the handlers whose plants are located within the marketing area and who regularly supply that area with fluid milk who are regulated. All handlers who receive or distribute milk within the area are required to submit monthly reports to the Market Administrator, listing the quantity of milk they have handled and the use for which it was sold. But only the handlers operating 'pool plants'—i.e., plants which meet certain standards set out in 7 CFR §§ 1002.25—1002.294—must pay the producers from whom they buy the uniform price set by the Administrator. This price is calculated each month on the basis of the reports that are submitted. After determining the minimum prices for each use classification pursuant to formulas set out in 7 CFR § 1002.40, the Administrator computes an average price for the 'pool' milk handled during that month. This figure is reached by first multiplying the 'pool' milk disposed of in each class by the established minimum price for that class, and then adding the products to the 'compensatory payments' made for nonpool milk. After certain minor adjustments are made, this sum is divided by the total quantity of 'pool' milk sold in the market during the month. The quotient is a 'blend price.' With some adjustments to reflect transportation expenses, this uniform price must be paid to producers by all handlers maintaining 'pool' plants. 7 CFR § 1002.66.
5
Adjustments among handlers are made by way of a 'Producer Settlement Fund,' into which each handler contributes the excess of his 'use value'5 over the uniform price paid by him to his producer. Handlers whose 'use value' of the milk they purchase is less than the 'blend price' they are required to pay may withdraw the difference from the fund. The net effect is that each handler pays for his milk at the price he would have paid had it been earmarked at the outset for the use to which it was ultimately put. But the farmer who produces the milk is protected from the effects of competition for premium outlets since he is automatically allotted a proportional share of each of the different 'use' markets.
II.
The Compensatory Payment Provision.
6
It will thus be seen that this system of regulation contemplates economic controls only over 'pool-handler' plants since only such handlers are required to pay the 'blend price' to their producers and to account to the Producer Settlement Fund. If limited to the provisions recounted above, the regulatory scheme would not affect milk brought into the New York-New Jersey marketing area by handlers who are primarily engaged in supplying some other market and whose producers are not located within the New York-New Jersey area. Some of the regional orders now in effect do not undertake any economic regulation of 'outside' or 'other source' milk.6 But it is quite obvious that under certain circumstances some regulation of such milk may be necessary. Accordingly, § 8c(7)(D) of the Act, 7 U.S.C. § 608c(7)(D), 7 U.S.C.A. § 608c(7) (D), authorizes the Secretary to include in his regulating orders conditions that are incidental to terms expressly authorized to effectuate the other provisions of such order.'
7
A handler who brings outside milk into a marketing area may disrupt the regulatory scheme in at least two respects:
8
(1) Pool handlers in the marketing area who are required to pay the minimum class prices for their milk may find their selling prices undercut by those of nonpool handlers dealing in outside milk purchased at an unregulated price.
9
(2) Producers in the marketing area, whose 'blend price' depends on how much of the relatively constant fluid-milk demand they supply in a given month, may find the outside milk occupying a portion of the premium market, thus displacing the 'pool' milk and forcing it into the less rewarding surplus uses, with the ultimate effect of diminishing the 'blend price' payable to producers.
10
In an effort to cope with these disruptive economic forces, the Secretary devised his 'compensatory payment' plan. In essence the plan imposes special monetary exactions on handlers introducing 'outside' milk for fluid consumption into a marketing area in months when there is a substantial surplus of milk on the market.7
11
Of the 68 regional milk orders which establish marketwide pools,8 64 contain 'compensatory payment' provisions of one kind or another. The Order now before us is typical of 23 of these orders.9 The Order provides that a handler who brings 'outside' milk into the New York-New Jersey area and sells it for fluid use must pay to the pool's producers, through the Producer Settlement Fund, an amount equal to the difference between the minimum prices for the highest and for the lowest use classifications prevailing in that area. In other words, for each hundredweight of non-pool milk sold for Class I use in the New York-New Jersey area, a payment equal to the difference between Class I and Class III prices must be made by the seller to the Producer Settlement Fund.
III
12
The Purpose and Effect of the Compensatory Payment.
13
After the Court of Appeals for the Second Circuit had held that compensatory payment requirement in the New York-New Jersey Milk Marketing Order (then Order No. 27) to be a 'penalty,' Kass v. Brannan, 2 Cir., 196 F.2d 791, 795, the Secretary of Agriculture conducted extensive hearings to determine whether it should be retained. His findings, which appear at 18 Fed.Reg. 8444—8454, explain this requirement as the most satisfactory means of imposing 'a suitable charge on such unpriced milk in an amount sufficient to neutralize, compensate for and eliminate the artificial economic advantage for non-pool milk which necessarily is created by the classified pricing and pooling of pool milk under the order.' Id., at 8448. There seems little doubt that an assessment equal to the Class I-Class III differential would, in all but rare instances, nullify any competitive advantage that nonpool milk could have: only if the sum of the purchase price of the outside milk and the cost of its transportation to market were less than the Class III price would a handler find it profitable to bring such milk into the marketing area. But it must be obvious that this payment is wholly or partially 'compensatory'—i.e., puts pool and nonpool milk 'on substantially similar competitive positions at source' (ibid.) only if the milk has been purchased at not more than the Class III price. If the purchase price of the nonpool milk exceeds the Class III price within the area, the effect of the fixed compensatory payment is to make it economically unfeasible for a handler to bring such milk into the marketing area.
14
The Secretary of Agriculture's determination that the Class I-Class III differential was the most suitable compensatory figure rested upon what was, in effect, an irrebuttable presumption that the nonpool milk was purchased at a rate commensurate with the value of 'surplus' (Class III) milk. See 18 Fed.Reg., at 8448.10 That presumption was based in turn on the supposition that the nonpool milk could not have been worth more than the Class III price where purchased since it could not be shipped elsewhere for Class I use. But it must be apparent that it is only if the milk is denied access to other marketing areas or if a prohibitive payment is assessed on its use elsewhere that it will depreciate in value to Class III levels. For if the milk can be freely shipped elsewhere for fluid use or if it is purchased in an area where prices paid to producers are regulated, it will command a higher price.
15
Indeed, the facts of the case now before us demonstrate the shortcomings of the Secretary's reasoning. One of the petitioners, Suncrest Farms, Inc., purchases its milk in Pennsylvania under regulations established by the Pennsylvania Milk Control Commission. In September 1957, which was one of the months during which it sought to sell its milk in the New York-New Jersey Marketing Area, Suncrest was required to pay $6.40 per cwt. for the milk it purchased from dairy farmers in Pennsylvania. The Class I-Class III differential in the New York-New Jersey Marketing Area during that month was $2.78 per cwt. Thus, if the 'compensatory payment' were assessed, Suncrest would actually be forced to pay $9.18 per cwt. for fluid milk sold in the area while the handlers maintaining pool plants in the area would pay only the Class I price, which was $6.23 in August 1957.11
16
If competitive parity among handlers of pool and nonpool milk were the only objective of the Secretary's 'compensatory' regulation, other marketing orders of the Secretary show that this result has been achieved without imposing unnecessary hardships, virtually 'trade barriers' as in the instance just given,12 on the nonpool milk.13
17
It is in considering the effect of the present compensatory payment provision on the pool producers, however, that the principal concern of the Secretary becomes quite apparent. As has been noted (370 U.S., p. 82, 82 S.Ct., p. 1172, supra), the sale for fluid use of nonpool milk in the marketing area displaces pool milk that might otherwise be used for this premium outlet. Since the market area's 'blend price' is computed only with reference to the pool milk, the effect of the entry of nonpool milk is to drive down the price that is paid to producers in the area. A close examination of the workings of the present compensatory payment provision reveals that its effect is to preserve for the benefit of the area's producers the blend price that they would receive if all outside milk were physically excluded and they alone would supply the fluid-milk needs of the area. For every cwt. of pool milk that is forced into 'surplus' use by the entry of nonpool milk, the handler introducing the outside milk is required to pay for the benefit of the area's producers the difference between the value the pool milk would have had if the nonpool milk had never entered and the value it has once the nonpool milk is sold for fluid use.14 In effect, therefore, the nonpool milk is forced to subsidize the pool milk and insulate the pool milk from the competitive impact caused by the entry of outside milk. This was recognized by the Court of Appeals which held that such a compensatory payment was 'designed to compensate the pool for the loss of the Class I fluid milk utilization and * * * protect the uniform blend price in the marketing area.' 287 F.2d, at 730. It is only if the Secretary has been authorized by the statute to impose such economic trade barriers on the entry of milk into an area so as to protect the prices received by the pool producers that the present compensatory payment plan can be sustained as 'necessary to effectuate' the expressly authorized provisions of this Order.
IV.
18
Section 8c(5)(G).
19
Section 8c(5)(G) of the Act, however, taken in light of its legislative history, indicates that the regulation here imposed by the Secretary was of the sort that Congress intended to forbid. Section 8c(5)(G) provides:
20
'No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.'
21
This provision was first enacted into law as part of the Agricultural Adjustment Act of 1935, 49 Stat. 750, amending the Agricultural Adjustment Act of 1933, 48 Stat. 31. It was re-enacted as part of the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, which reaffirmed the marketing order provisions of the 1935 Act after the processing tax had been struck down as unconstitutional in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477.
22
Along with enumerating the powers granted to the Secretary of Agriculture so as to avoid the 'delegation' problems brought to light by the then recent decision in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, the Congress sought in 1935 to limit the Secretary's powers so as to prevent him from establishing 'trade barriers.' Midwestern legislators were particularly concerned over this possibility. When the reported bill which contained no provision like the present § 8c(5)(G) came to the floor of the House of Representatives, Representative Andresen of Minnesota suggested that the Secretary might use his powers to 'stop the free flow in commerce * * * of dairy products.' He received an assurance from Representative Jones, the Chairman of the House Committee on Agriculture, that the Secretary was not authorized to require anything more of milk coming into a marketing area than that it 'comply with the same conditions which the farmers and distributors comply with in that region.' 79 Cong.Rec. 9462.15 An amendment to the bill clarifying this position was then offered by Representative Sauthoff of Wisconsin, 79 Cong.Rec. 9493,16 but no action was taken on that proposal.
23
On the next day, Representative Andresen proposed from the floor of the House the forerunner to the present § 8c(5)(G). 79 Cong.Rec. 9572. His amendment took the following form:
24
'(g) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit the marketing in that area of any milk or product thereof produced in any production area in the United States.'
25
There was no objection to the addition of this language, Representative Jones remarking that '(i)t is simply clarifying.' Ibid. But when Representative Sauthoff sought to change the amendment by substituting the words 'limit or tend to limit' for 'prohibit,' Representative Jones objected on the ground that necessary milk classification and minimum pricing for the protection of outside milk producers regularly supplying their own marketing area would 'tend to limit' the introduction of their milk into other areas.17 Ibid.
26
The House bill, with the language added by Representative Andresen's amendment, went to the Senate. Accompanying the bill to the floor was S.Rep.No. 1011, 74th Cong., 1st Sess., which stated, at p. 11:
27
'To prevent assaults upon the price structure by the sporadic importation of milk from new producing areas, while permitting the orderly and natural expansion of the area supplying any market by the introduction of new producers or new producing areas, orders may provide that for the first 3 months of regular delivery, payments shall be made to producers not theretofore selling milk in the area covered by the order at the price fixed for the lowest use classification. This is the only limitation upon the entry of new producers—wherever located—into a market, and it can remain effective only for the specified 3-month period.' (Emphasis added.)18
28
In the Senate § 8c(5)(G) was amended, without objection, 79 Cong.Rec. 11655, to read:
29
'(G) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, except as provided for milk only in subsection (d), the marketing in that area of any milk or product thereof produced in any production area in the United States.'19
30
Section 8c(5)(G) emerged from conference in its present form. The conference report explained how the differences between the House and Senate versions were resolved (H.R.Rep.No. 1757, 74th Cong., 1st Sess. 21):
31
'* * * The conference agreement retains the House provision with respect to prohibitions on marketing of both milk and products of milk. The conference agreement also denies the authority to limit in any manner the marketing in any area of milk products (butter, cheese, cream, etc.) produced anywhere in the United States. The language adopted by the conference agreement does not refer to milk, and so does not negative the applicability to milk, for use in fluid form or for manufacturing purposes, of the provisions of the bill relating to milk, such as the provisions on price fixing, price adjustment, payments for milk, etc.'
32
When the conference agreement came to the floor of the House, Representative Jones again explained what § 8c(5)(G), when taken together with § 8c(5)(D), meant (79 Cong.Rec. 13022):
33
'Mr. SNELL. * * * I do not understand exactly what this means, 'No marketing agreement or order applicable to milk and its products,' and so forth.
34
'Mr. JONES. That simply applies to fluid milk. You cannot make any limitation at all on the amount of butter or cheese or milk products that are shipped from any one area to another, and the limitation that may be applied on milk is only such limitation as puts each area on an equality with the other areas after a certain period of about 2 1/2 months.
35
'Mr. SNELL. How does that change the situation from the present law?
36
'Mr. JONES. The provisions of this particular bill would enable that area to be protected from being swamped with fluid milk from the outside, bought at any old price. For instance, if you do not have the protection of this bill they would run into the same trouble they ran into in the New York milk cases, where they went into New Hampshire and bought milk at a lower price and came in and broke down your milk agreements. Under the provisions of this bill if a price were fixed in this particular area in New York, then if anyone bought milk from an outside area and brought it in he would be compelled to pay the producer the same price that was being paid the producers within the area and comply with all regulations and requirements of that area. For the first 2 months he would be required to take the manufacturer's price.' (Emphasis added.)
37
This history discloses that rather than being confined, as Judge Learned Hand suggested in Kass v. Brannan, 196 F.2d, at 800, to practices aimed at the exclusion of cheese and other milk products from eastern markets, § 8c(5)(G) was compendiously intended to prevent the Secretary from setting up, under the guise of price-fixing regulation, any kind of economic trade barriers, whether relating to milk or its products. Whenever there was an attempt to broaden the language of subsection (G) to encompass 'limitations' as well as 'prohibitions,' those opposing it pointed only to the fact that 'limit' might be read as including the type of price fixing covered by subsection (D)—i.e., allowing new pool producers only manufacturing-use prices for a limited period—or other attempts to put outside milk on an equal footing with pool milk. Although the words of § 8c(5)(G), 'in any manner limit,' must be taken, in the context of their legislative history, as referring only to milk products, that history likewise makes it clear that as regards milk the word 'prohibit' refers not merely to absolute or quota physical restrictions, but also encompasses economic trade barriers of the kind effected by the subsidies called for by this 'compensatory payment' provision.
V.
38
The Invalidity of the Present Compensatory Payment Provision.
39
In light of the legislative history of § 8c(5)(G) we conclude that the compensatory payment provision of the New York-New Jersey Milk Marketing Order must fall as inconsistent with the policy expressed by Congress in that section.20 Because it conflicts with § 8c(5)(G), the payment provision cannot be justified under the general terms of § 8c(7)(D), which prevents the inclusion of conditions that are inconsistent with express statutory provisions. Nor is the compensatory payment clause saved by the circumstance that in some instances it may also fortuitously operate to put the handlers of pool and nonpool milk on a competitive par. As has been pointed out (note 13, supra), there are other means available to the Secretary for achieving this result, while affording protection to pool producers, without imposing almost insuperable trade restrictions on the entry of nonpool milk into a marketing area.
40
The Government contends that the effect of § 8c(5)(G) may not be considered by this Court since that provision was not cited by the petitioners in the administrative proceeding in the Department of Agriculture. But even on the Government's premise that an unauthorized regulation should be upheld by this Court merely because the provision prohibiting it was not cited in the administrative proceeding in which it was attacked, this case presents no such instance. The administrative petition filed with the Department of Agriculture alleged that the effect of the compensatory payment clause amounted 'to establishing tariffs or barriers interfering with the free flow of milk across state lines,' an obvious reference to the prohibition of § 8c(5)(G).
41
In addition, the Government contends that the petitioners had the choice of joining the market-wide pool, in which case they would not have been subject to the compensatory payment provisions. Their election to stay out of the pool, it is argued, bars any attack on the consequences of their choice. However, such an 'election' is surely illusory. The consequences of joining the pool would have been that petitioners would have been forced to pay the 'blend price' to all their producers wherever located and account to the Producer Settlement Fund for all milk wherever sold. In these circumstances the election was not voluntary as in Booth Fisheries Co. v. Industrial Comm'n, 271 U.S. 208, 211, 46 S.Ct. 491, 492, 70 L.Ed. 908. It was coercive and, indeed, no election at all.
42
Whether full regulation of the petitioners would be permissible under the Act is a question which we need not reach in this case. If the Secretary chooses to impose such regulation as a consequence of a handler's introducing any milk into a marketing area, the validity of such a provision would involve considerations different from those now before us. With respect to these petitioners, however, and with regard to the regulation here in issue, we conclude that the action of the Secretary of Agriculture exceeded the powers entrusted to him by Congress.
43
The Secretary of course remains free to protect, in any manner consistent with the provisions of the statute, the 'blend price' in this or any other marketing area against economic consequences resulting from the introduction of outside milk. We do not now decide whether or not any new regulation directed to that end could be made to apply retrospectively, or whether, if it could be validly so applied, the presently impounded funds could be resorted to pro tanto in its effectuation. Cf. United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211. 'What further proceedings the Secretary may see fit to take in the light of our decision, or what determinations may be made by the District Court in relation to any such proceedings, are not matters which we should attempt to forecast or hypothetically to decide.' Morgan v. United States, 304 U.S. 1, 23, 26, 58 S.Ct. 773, 999, 1000, 1001, 82 L.Ed. 1129.
44
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
45
Judgment of Court of Appeals reversed and case remanded to District Court.
46
Mr. Justice FRANKFURTER took no part in the decision of this case.
47
Mr. Justice WHITE took no part in the consideration or decision of this case.
48
Mr. Justice BLACK, dissenting.
49
I find it impossible to agree with the Court's holding or opinion. In 1936, in United States v. Butler,1 this Court temporarily paralyzed the national farm recovery program by holding important parts of the Agricultural Adjustment Act of 1933 unconstitutional and by casting grave doubts upon the remainder of that Act which had been passed at the bottom of the Great Depression for the express purpose of alleviating the desperate economic plight of the American farmer. Following that decision Congress, in 1937, with unusual promptness adopted another national farm program reaffirming the broad and comprehensive powers it had previously given the Secretary of Agriculture to develop agricultural marketing plans for the purpose of raising the income of farmers.2 The philosophy of this later Act was not competition as in the Sherman Act but governmental price fixing as in the original 1933 Agricultural Adjustment Act, the National Industrial Recovery Act, and a host of other contemporaneous Acts, all of which were designed to raise the income and purchasing power of workers and farmers. Today some 26 years after the Butler decision this Court again projects itself across the path of the national farm program by reading Congress' 1937 reenactment as designed to encourage competition rather than to help farmers by governmental price fixing, and on this basis strikes down a vital element of many of the milk marketing orders set up under the 1937 Act while raising clouds of confusion and uncertainty as to the validity of many others. Although the blow to the present farm program is not so devastating as the one inflicted on the original Act by the Butler decision, I think that in ultimate effect the harmful consequences of the two decisions will differ only in degree. It is my belief that the order of the Secretary which the Court strikes down was set up in faithful adherence to the Act's purpose to raise the prices that farmers receive for their products and that the Court's action will tend to have precisely the opposite effect of depressing those prices. I have no doubt but that the Court's decision will enable some handlers to reap greater profits but I regret to say that this is bound to be at the expense of the farmers themselves—for whose benefit the national program was primarily passed. Certainly this is true of the more than $700,000 which the Court's decision today will allow the two handlers here to be paid which of necessity must come out of the pockets of the dairy farmers where this milk was sold.
50
The basic features of the Act under which the Secretary promulgated the regulation which the Court today strikes down were first enacted in 19353 when the dairy industry was near the bottom of its depression and dairy farmers in many parts of the country were not even receiving the actual cost of producing the milk they sold. These 1935 provisions were themselves amendments to the original 1933 Agricultural Adjustment Act, and were designed to spell out more clearly and to some extent add to the broad powers which the original 1933 Act had given the Secretary to correct the 'severe and increasing disparity between the prices of agricultural and other commodities' by raising 'the purchasing power of farmers' and stabilizing the value of the 'agricultural assets supporting the national credit structure.'4
51
The causes of the low prices to dairy farmers which led Congress to grant these broad powers were, like the details of the operation of the milk business itself, incredibly complex. In the main, however, these low prices were widely attributed to a vicious and destructive competition among dairy farmers for fluid milk sales which brought farmers higher prices than did sales as surplus milk for manufacturing butter, cheese and other milk products.5 In order to bring an end to this competition which was pushing farmers to the wall, the 1935 Act gave the Secretary specific power to set up regional marketing areas within which he could, for the Government, fix minimum prices handlers would have to pay to farmers for the various uses of milk, require that those minimum prices be paid to a pool for the area and distribute the proceeds of the pool so that each farmer selling milk through the pool would ultimately be paid at the same uniform rate or 'blend price' regardless of the use to which his particular milk was put.6 In the original 1935 Act the Secretary was directed to fix prices at 'parity'—a level designed by Congress to insure that farmers generally would receive a higher price for their products than they could get in an open, competitive market.7 The 1937 reenactment went beyond even this, however, and gave the Secretary power to fix prices above this parity level in order to insure that dairy farmers in particular would receive a high enough price for their products.8 In order to make sure that the Secretary had enough power to raise prices above the competitive level the Secretary was also authorized to issue orders 'Incidental * * * and necessary to effectuate' the specific price-fixing and other powers given to him.9 Thus it can be seen that the general scheme of the Act was to raise prices to farmers by governmental fixing of minimum prices for dairy products within specific regional areas, thereby abandoning to that extent the system of price fixing by competition.
52
In accordance with this general plan and under the authority of the Act, the Secretary has proceeded after full hearings within the various regions to set up a number of regional milk marketing pools, one of which is the New York-Northern New Jersey pool whose operation is jeopardized by the Court's decision today.10 The Secretary has also chosen to leave a number of areas unregulated. Obviously in a system including both large unregulated areas and regulated regional pools in which prices may be fixed at different levels, there will be significant and complicated problems involved in milk sales and purchases that do not take place wholly within a single pool. Among the most serious of these problems is that handlers from outside a pool can, if left unregulated, get the advantages of selling milk in that pool area without bearing any of the burdens that members of that pool have to bear. And as shown by the record in this case such sales can reduce the net price received by the farmers within the pool area. In an obvious effort to prevent any such harmful effects on the prices received by farmers in the New York-Northern New Jersey pool, the Secretary, properly I think, acting under his authority to issue orders 'Incidental * * * and necessary to effectuate' his specific price-fixing powers, provided that non-pool handlers who sold fluid milk in that pool area at times when there was surplus fluid milk in the pool should make a payment to compensate pool farmers for the displacement of fluid sales they otherwise would have made, compensate for the reduction of the regional pool fund which this would cause and to compensate for the consequent diminution of the blend price that would be paid to pool farmers. It is this key regulatory feature which the Court strikes down as a 'trade barrier' prohibited by § 8c(5)(G) of the Act because it limits the ability of outside handlers to sell milk within the pool area at a profit.
53
It is no doubt true that the Secretary's requirement that nonpool handlers make compensatory payments in order to sell fluid milk within the New York-Northern New Jersey pool area does limit to some extent the ability to handlers whose major business is outside the pool to dump their surplus milk into the pool at highly profitable fluid milk prices, and if this is a trade barrier the Secretary's regulation can properly be called a 'trade barrier.' But § 8c(5) (G) says nothing at all about prohibiting 'trade barriers' or guaranteeing high profits to handlers, and if it had it would have been at cross purposes with the basic aim of the Act to have government rather than competition fix the minimum prices that farmers in designated regional areas must be paid for their milk. It says only:
54
'No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.'11
55
This language contains no words or arrangement of words of any kind that would prohibit the Secretary from limiting the marketing of milk in any regional area where necessary to protect the prices fixed for that regional area. The Court, however, goes to great lengths to try to show on the basis of legislative history that Congress really meant the no-limitation clause to apply to milk as well as to milk products. In other words the Court wants to read the statute as if Congress had said 'No order shall prohibit or limit the marketing in that area of any milk or product thereof.' But Congress simply did not say that. And the whole legislative history persuades me that Congress knew exactly what it was saying and that, while it intended to forbid the Secretary from making blanket prohibitions against outside milk, it also meant to leave the Secretary free to establish whatever regulations were necessary to guarantee that farmers in a price-fixing region received the regional prices he was authorized to fix even though those regulations might limit sales by outside handlers by making them unprofitable.12
56
Outside the language of § 8c(5)(G) itself the clearest indication that this is the proper interpretation of the legislative history of the Act is that an amendment which would have made the no-limitation clause applicable to milk as well as milk products was defeated on the floor of the House and that an amendment to the same effect which passed the Senate was deleted in Conference.13 The arguments of the Chairman of the House Committee on Agriculture, one of the principal architects of the program, against the amendment in the House show, almost conclusively, a general understanding that regional price fixing necessarily required sales from out of the region to be limited if the price fixing were to be successful:
57
'Mr. JONES. Mr. Chairman, the adoption of the amendment of the gentleman from Wisconsin would absolutely wreck the whole milk program. In order to get away from the terrific conditions that have prevailed in the milk industry there is provided in the bill authority to fix a minimum price to producers. That, at least in a measure, would limit or tend to limit shipment, and yet the gentleman, I am sure, does not want to interfere with the price to producers. Then it is a universal custom in the marketing of milk to classify milk. This, in a way, is a limitation.
58
'I am perfectly willing to adopt the first amendment suggested (the present § 8c(5)(G)), because that simply treats all areas alike, for you could not prohibit someone from an outside area coming in so long as he complied with the conditions prescribed for that area; but if you said that no restrictions or limitations could be required, it would wreck the program, it would destroy every vestige of a program we have for milk.'14
59
After the Senate amendment had been rejected by the Conference and while the Conference Report was being considered in the House of Representatives, a discussion took place on the floor between Representative Hope, a member of the House Committee on Agriculture and one of the conferees, and the Chairman of the Committee who was also a conferee. This discussion shows the same understanding that the Secretary was to be left free to impose whatever limitations were necessary to protect the regional prices he was authorized to fix:
60
'Mr. JONES. But the original amendments did not permit any orders governing the price to the producers?
61
'Mr. HOPE. No; but otherwise the Secretary could make orders which would regulate the bringing in of milk from the outside into any particular milk-shed, but under the amendments we are now considering the Secretary's power is limited. He cannot prohibit milk from coming in?
62
'Mr. JONES. That is correct.
63
'Mr. HOPE. But he can prescribe some limitations?
64
'Mr. JONES. Yes; and he cannot prohibit the products of milk being brought into any area.
65
'Mr. HOPE. No; but he can prescribe limitations on the importation of fluid milk.
66
'Mr. SNELL. Then, as far as fluid milk is concerned, it is protected in certain markets, but, as far as the other products are concerned, they are not protected.
67
'Mr. JONES. That is correct.'15
68
These were the last comments made on the floor of the House concerning milk before the Conference Report was finally adopted.
69
In the light of this legislative history and the Act's language itself, I cannot possibly read § 8c(5)(G) or any other part of the Act to insure profitable operations to outside handlers who desire to dump surplus milk into a regional price-fixing area or to say that the Secretary lacks the power to protect by appropriate regulations the integrity of the regional prices which Congress authorized him to fix. I simply cannot believe that Congress intended to take away with one hand the high fixed price for milk which it gave with the other.
70
The net result of the Court's action is to leave the farmers in the New York-Northern New Jersey pool, and those in 22 other pools containing the provisions which the Court strikes down today,16 completely defenseless against an onslaught of outside milk that is highly discriminatory because the outside milk bears none of the burdens of pool milk. I say completely defenseless despite the fact that the Court intimates that the Secretary might possibly devise some alternative compensatory payment plan that would satisfy the exacting standards which it lays down today. My first reason for saying this is that I do not see how any formula that the Secretary could devise under the Court's expanded interpretation of the word 'prohibit' in § 8c(5)(G) would protect pool members from unfair competition by outside handlers who are by the Court's decision given the advantages but not required to bear the burdens of the pool.17 Secondly, even if such a formula were possible I doubt that a single member of this Court has the technical knowledge about the complicated workings of the milk industry to formulate a sound substitute for the compensatory payment plan which the Court strikes down—a regulatory plan which represents more than a quarter century of daily practical experience in administering the congressional farm plan. Thirdly in any event the Court's vague intimations that some compensatory payment plan might be valid are hardly sufficient to furnish the Secretary with any guidance at all as to what formula if any the Court would permit him to use to protect the farmers in this pool from the effects of being compelled to compete with outside 'free riders.'
71
I think that if the Court really does believe that the Secretary has any power at all to prevent pool farmers from being subjected to discriminatory competition from outside 'free riders' it should state in clear and precise terms what those powers are and inform the Secretary how he can meet this Court's requirements. The Court should than remand this case to allow the Secretary to take the action which it will approve, permit him to determine the amount that he could properly under its standards have required these handlers to pay and direct that the District Court pay over that amount to the Secretary out of the funds now in its possession. This plan would at least offer the farmers in this pool some protection against having to pay out all of the more than $700,000 in compensatory payments which has already been collected from these handlers. Such a plan was followed in United States v. Morgan,18 and there is every reason in equity and good conscience why it should be followed here. In that case the District Court enjoined an order of the Secretary but required the party challenging the order to pay into court sufficient funds to effect compliance with the order if it should ultimately be found valid. This Court found the order defective but nevertheless ordered the District Court not to return the fund, which then contained over a half million dollars. On the contrary, over strong dissents urging that the Secretary only had power to issue a new order for the future, this Court commanded that the fund be retained until the Secretary could make new findings and enter a new order so that the fund could be disposed of under a proper determination of the Secretary, stating that:
72
'Due regard for the discharge of the court's own responsibility to the litigants and to the public and the appropriate exercise of its discretion in such manner as to effectuate the policy of the Act and facilitate administration of the system which it has set up, require retention of the fund by the district court until such time as the Secretary, proceeding with due expedition, shall have entered a final order in the proceedings pending before him.'19
73
Following this decision the Secretary held new hearings, made new findings and entered a new order, according to which this Court in a later United States v. Morgan20 ordered the more than one-half-million-dollar fund distributed.
74
Despite the fact that the Court purports not to pass either on the validity of requiring all handlers to bear the full burdens of pool membership or upon the ability of the Secretary to apply against these handlers any future scheme of regulation which meets the Court's standards for the period here in question,21 it seems clear that in failing to follow the Morgan procedure the Court in effect rules against the Secretary on both these questions. This is because the Court's refusal to pass specifically on these questions leaves standing the District Court's holding that the Secretary cannot require these handlers to bear the full burdens of pool membership for the period during which the compensatory payments struck down here were made. The regulation under which the Secretary claims that these handlers are subject to the full burdens of pool membership is a part of the same section22 as the one under which the handlers made the compensatory payments of which they complain. That section provides that all handlers like petitioners are pool handlers and required to bear all the burdens of pool membership unless they elect to be nonpool handlers and make compensatory payments. The Secretary's contention is that once the part of the regulation which provides for the compensatory payment is struck down, as the Court does here, the remainder of the regulation which requires all handlers to be pool handlers applies. By remanding this case to the District Court which has already ruled adversely on this claim the Court without so much as saying a single word on this point effectively prevents the Secretary from trying to protect pool farmers from free-riding outside milk by treating these handlers as pool members for the period here in dispute.
75
The full effect of the Court's failure to follow the Morgan procedure and decide whether the Secretary's provisions for full regulation of these handlers are valid, or just what the Secretary could do to protect the prices he has fixed, is in my opinion likely to be a wholly unjust and inequitable windfall of over $700,000 to the handlers, since it will ultimately have to come out of the pockets of the farmers who bear the burdens of this pool. How many more such windfalls to other handlers involving how many countless thousands of dollars in this and the other 22 similarly situated pools the Court's action will bring one can only guess.23 One familiar with the Act and its history need not guess, however, about the fact that such a result would have been abhorrent to the Congress which passed this Act for the benefit of farmers. I would affirm the decision of the court below which upheld the Secretary.
1
The petitioners instituted this action challenging the validity of the compensatory payment provision by filing administrative petitions with the Secretary of Agriculture pursuant to § 8c(15)(A) of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 608c(15)(A), 7 U.S.C.A. § 608c(15)(A). The Hearing Examiner sustained the petitioners' contentions on the authority of Kass v. Brannan, 196 F.2d 791, but the Judicial Officer, acting on behalf of the Secretary of Agriculture, dismissed the petitions.
Petitioners then sought review of the Secretary's ruling in the District Court under § 8c(15)(B) of the Act. The review proceedings were consolidated with enforcement actions brought by the Government pursuant to § 8a(6) of the Act. The District Court, relying on Kass v. Brannan, supra, held that the payment provision was invalid. 183 F.Supp. 80. It was this decision that was reversed by the Court of Appeals. 287 F.2d 726.
2
A general reorganization of Chapter IX of Title 7 of the Code of Federal Regulations during the past year has resulted in redesignation of most of the milk marketing orders. The New York-New Jersey Order had previously been designated as Milk Marketing Order No. 27 and had been found at 7 CFR § 927. The section references and the contents of the regulations as quoted throughout this opinion are as they were in effect on January 1, 1962.
3
Section 8c(5)(A) provides:
'(5) Milk and its products; terms and conditions of orders
'In the case of milk and its products, orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7) of this section) no others:
'(A) Classifying milk in accordance with the form in which or the purpose for which it is used, and fixing, or providing a method for fixing, minimum prices for each such use classification which all handlers shall pay, and the time when payments shall be made for milk purchased from producers or associations of producers. Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order, (2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers.' 7 U.S.C. § 608c(5)(A), 7 U.S.C.A. § 608c(5)(A).
4
These provisions establish certain performance requirements aimed at insuring that the plant continues to provide fluid milk to the marketing area even in periods of short supply. Thus, it is primarily the handlers whose main concern is the marketing area who qualify for the 'pool.'
5
'Use value' is the price the handler would have had to pay, at prevailing minimum rates, had he purchased his milk at a price reflecting its ultimate disposition.
6
See 7 CFR §§ 1034 (Dayton-Springfield), 1037 (North Central Ohio), 1038 (Rockford-Freeport), 1074 (Southwest Kansas).
7
The payment provision of 7 CFR § 1002.83 applies only in those months when the volume of milk sold for Class III use exceeds 15% of the total pool milk reported in the marketing area.
8
The Act authorizes the establishment of either marketwide pools or individual handler pools. Since the latter require only that each handler pay uniform prices to all the producers from which he buys, but does not impose a uniformity requirement among the various handlers, there is no need for adjustments among handlers. Consequently, no compensatory payment provision is included in orders establishing individual handler pools. See 7 CFR §§ 1004 (Philadelphia), 1005 (Tri-State), 1010 (Wilmington), 1039 (Milwaukee), 1041 (Toledo), 1044 (Michigan Upper Peninsula), 1078 (North Central Iowa), 1096 (Northern Louisiana), 1097 (Memphis), 1102 (Fort Smith), 1129 (Austin-Waco), 1130 (Corpus Christi), 1134 (Western Colorado).
9
Compare 7 CFR §§ 1001.65 (Greater Boston), 1003.62 (Washington, D.C.), 1006.65 (Springfield, Mass.), 1007.65 (Worcester), 1008.54 (Wheeling), 1009.54 (Clarksburg, W. Va.), 1011.62 (Appalachian), 1014.46 (Southeastern New England), 1015.46 (Connecticut), 1016.62 (Upper Chesapeake Bay), 1030.61 (Chicago), 1031.70(b) (South Bend-LaPorte-Elkhart), 1036.84(b) (Northeastern Ohio), 1048.54 (Greater Youngstown-Warren), 1061.54 (St. Joseph), 1068.70(b) (Minneapolis-St. Paul), 1071.62(b) (Neosho Valley), 1072.55 (Sioux Falls-Mitchell), 1106.55 (Oklahoma), 1125.70 (Puget Sound), 1126.70(d) (North Texas), 1133.70(b) (Inland Empire).
10
'As stated earlier herein, all milk which is established to be primarily associated with the New York milk marketing area under the standards prescribed by the order is included in the New York pool. Conversely, the non-pool milk which enters the marketing area for fluid use originates from plans which are not sufficiently associated
with the New York market to have their milk in the pool. Such plants have their primary interests in other fluid markets or specialized manufacturing uses and frequently have more milk than is required for these primary purposes. It is this surplus milk at non-pool plants which can be 'dumped' into the New York market for fluid use, provided only that the plant and the milk (have) marketing area health approval. The operator of such a non-pool plant has a choice of using the excess milk for surplus uses (ordinarily in the manufacture of various milk products) or of sending it to the New York marketing area for fluid uses. In making this decision he will compare the respective net returns to him for this surplus milk and will naturally select the fluid alternative, for it will yield the greater return. In the absence of classified pricing, his cost, at source, for the excess milk remains exactly the same whether he uses it for surplus disposition or for fluid use. The pool plant operator on the other hand has no such advantage for he pays a higher classified price, at source, if he sells the milk in the market area for fluid use (Class I—A or II) than if he disposes of it for surplus manufacturing uses (Class III).
'If this artificial advantage in favor of surplus non-pool milk at the plant of origin is to be effectively removed, as it must be, the milk must be treated and evaluated for what it actually is, namely surplus milk in the milkshed. If New York marketing area disposition were not available for this surplus, the non-pool handler could derive from it only its surplus value. This surplus value is its true value or 'opportunity cost' and such surplus value should be used as the subtrahend in the formula for compensation payments on non-pool milk from plants not subject to a Federal order.
'The Class III price under the New York order is the class price which is payable, at source, for pool milk under the New York order when used for most surplus uses. It is expressly designed to fix a proper classified value, at source, for surplus milk. The Class III price closely approximates the amount paid in the Northeast to farmers not under the New York order for so much of their milk as is used for general manufacture.
'It is therefore a dependable indicator of the value of surplus milk at source. If a non-pool handler, for his own reasons, choses to pay
more than its true market value, at source, for surplus milk which he sends to the New York area, the pool should not underwrite this unnecessary cost, particularly since the premium can be used to outbid pool handlers for milk, as previously shown.'
11
The fact that petitioners were paying more for their milk than the Class I price in the New York-New Jersey Marketing Area leaves no room for any suggestion that they will be receiving a 'windfall' if it is ultimately adjudged that they are entitled to have returned the full amount of their compensatory payments.
12
The total amount of the compensatory payments involved in this litigation, embracing a period of approximately four years, was some $617,000 as to Lehigh Valley and $108,000 as to Suncrest.
13
Several of the marketing orders make the compensatory payment equal the difference between the Class I price in the marketing area and the actual cost of the nonpool milk. See 7 CFR §§ 1042.60 (Muskegon), 1128.62(b) (Central West Texas). In some marketing areas the handler who deals in nonpool milk is permitted to elect each month between paying the fluid milk-surplus use differential and paying the difference between his actual cost and the minimum regional price for Class I milk. See 7 CFR §§ 1013.62 (Southeastern Florida), 1033.61 (Greater Cincinnati), 1035.63 (Columbus, Ohio), 1040.66 (Southern Michigan), 1043.84 (Upstate Michigan), 1045.83 (Northeastern Wisconsin), 1047.62 (Fort Wayne), 1064.61 (Greater Kansas City), 1065.62 (Nebraska-Western Iowa), 1067.61 (Ozarks), 1069.62 (Duluth-Superior), 1073.62 (Wichita), 1094.62 (New Orleans), 1098.92 (Nashville), 1103.62 (Central Mississippi), 1105.62 (Mississippi Delta), 1107.61 (Mississippi Gulf Coast), 1131.62 (Central Arizona), 1135.62 (Colorado Springs-Pueblo), 1136.62 (Great Basin), 1137.62 (Eastern Colorado).
Other marketing orders, applicable in some areas, assess a compensatory payment equal to the difference between the 'blend price' paid in the area for pool milk and the Class I price, thus treating the handler of nonpool milk as if he were a member of the pool with respect to such milk as he introduced into the marketing area.
Where this differential is accepted as the measure of the compensatory payment it is done only in those months when the surplus is lowest. In the spring and summer months the fluid milk-surplus use differential is exacted. See 7 CFR §§ 1032.55(b) (Suburban St. Louis, August-February), 1046.55(b) (Ohio Valley, August-March), 1049.55(b) (Indianapolis, August-March), 1062.55(b) (St. Louis August-February), 1063.63(b) (Quad Cities-Dubuque, July-November), 1066.57(a) (Sioux City, August-February), 1070.63(b) (Cedar Rapids-Iowa City, July-November), 1075.63(b) (Black Hills, July-March), 1076.63(b) (Eastern South Dakota, July-February), 1079.63(b) (Des Moines, July-March), 1090.54(b) (Chattanooga, August-February), 1095.70(e)(2) (Louisville-Lexington, October—December),
1099.62(a) (Paducah, August—March), 1101.93(b) (Knoxville, August February), 1104.53(b) (Red River Valley, August-January), 1108.54(b), (Central Arkansas, August-February), 1127.65(b) (San Antonio, January and August), 1132.63(b) (Texas Panhandle, July-February).
The latter method treats the handler of nonpool milk who buys at a price in excess of the blend price as if he were a member of the pool since a handler in the pool may, if he chooses, pay his producer more than the 'blend price' set by the Market Administrator, see Stark v. Wickard, 321 U.S. 288, 291, 64 S.Ct. 559, 562, 88 L.Ed. 733, but must still account to the Producer Settlement Fund as if he had paid only the 'blend price.' By treating nonpool milk in the same manner, the Secretary might be able to justify a compensatory payment equal to the difference between the nonpool milk's 'use value' and the 'blend price,' though we do not decide the question. See generally Hutt, Restrictions on the Free Movement of Fluid Milk Under Federal Milk Marketing Orders, 37 U.Det.L.J. 525, 564—577 (1960).
The suggestion that a nonpool handler would be given a competitive advantage under either of these methods because, in the words of the Judicial Officer, he does not have 'to equalize his utilization' as do pool handlers is demonstrably unsound. Insofar as the handlers' sale of milk is concerned, neither pool nor non-pool handlers are required to share or 'equalize' their proceeds with others. To the extent that this contention relates to the handlers' purchase of milk and is meant to suggest that nonpool handlers will find it easier to buy milk because they will be able to pay higher prices to their producers, the exaction of a Class I-blend price payment would effectively discourage purchases in excess of the blend price (which is what the pool's producers are paid). And the assertion that the pool 'carries the surplus burden for outside handlers' is based on the same mistaken reasoning as underlies the Secretary's determination to retain the Class I-Class III payment after Kass v. Brannan, supra. See 370 U.S., pp. 84—86, 82 S.Ct., pp. 1173—1174, supra.
14
A highly simplified illustration serves to clarify this effect: If the Class I price on a given date is $6 per cwt. and the Class III price is $3 per cwt., and if 2,000 cwt. are consumed as fluid milk and another 2,000 cwt. are produced by the dairy farmers in the area and utilized for surplus uses, the computation of the blend price would be as follows:
Table A.
Class I...................... 2,000 x 6.00 equals 12,000
Class III.................... 2,000 x 3.00 equals 6,000
Totals...................... 4,000 at 18,000
Blend Price............... $4.50
If 500 cwt. are then brought in from the outside as nonpool milk and sold for Class I use, 500 cwt. of the pool milk will drop into Class III (since the fluid milk demand remains relatively constant):
Table B.
Class I...................... 1,500 x 6.00 equals 9,000
Class III.................... 2,500 x 3.00 equals 7,500
Totals...................... 4,000 at 16,500
Blend Price............... $4.125
The producers in the pool would thereby be receiving $.375 less per cwt. than had the nonpool milk stayed out altogether. By distributing to them (through the exaction made of nonpool handlers) the difference between Class I and Class III prices multiplied by the
amount of nonpool milk sold in the area as Class I, that deficit is restored. Thus,
Table C.
(Nonpool milk sold as Class I) x (Class minus
ClassIII)
equals
(Loss to pool by displacement of Class I outlet)
or
500 x 3.00 equals 1,500
1,500 divided by 4,000 cwt. equals .375 per cwt.
The Secretary's formula, therefore, precisely accomplishes the restoring to the pool's producers whatever they have lost by reason of the occupation of their Class I outlet by the nonpool milk.
It should be noted that the actual computation of the blend price, as set out in 7 CFR § 1002.66, achieves this same result in an indirect fashion. Instead of computing the blend price without reference to any nonpool milk, the Secretary's formula includes the compensatory payments within the list of minimum-price obligations that are added in determining the total proceeds for milk sold within the area. 7 CFR § 1002.66(c). But the blend price is then computed by dividing this sum by the amount of 'milk delivered by producers,' i.e., pool milk. Consequently, the actual computation of the uniform price under the above illustration would be as follows:
Table D.
Class I...................... 1,500 x 6.00 equals 9,000
Class III.................... 2,500 x 3.00 equals 7,500
Compensatory payments (nonpool milk) 500 x 3.00 equals 1,500
Totals (pool milk).......... 4,000 at 18,000
Blend Price................. $4.50
The funds paid into the Producer Settlement Fund by the handlers dealing in nonpool milk are then available to the pool handlers, whose credits from the Fund will be larger to the extent that they have been forced to pay a higher blend price.
15
'Mr. ANDRESEN. Is there anything in the milk section of the bill which gives the Secretary authority to set up trade barriers and stop the free flow in commerce throughout the United States of dairy products?
'Mr. JONES. No. There is nothing in the bill that would authorize that. The Secretary may require that in crossing from one region to another that they comply with the same conditions which the farmers and distributors comply with in that region.
'Mr. ANDRESEN. That is, sanitary regulations?
'Mr. JONES. Sanitary and other uniform regulations; but he cannot set up any trade barriers which would keep them out.
'Mr. ANDRESEN. A great many Members have inquired about that feature, and I just wanted the gentleman to bring that out.
'Mr. JONES. The amendments require a uniform price and uniform set of conditions and fair distribution. In the first place, I do not believe we could give authority to set up these barriers. In the second place, the bill does not do that. It simply enables them to have a program in one of these regions, and in developing these orders which the Secretary issues, the word 'region' wherever possible. Those on the outside must come into that.' (Emphasis added.)
16
The proposed amendment read:
'Sec.—(b) No marketing agreement, order, or regulation shall contain any term or provision which will tend to result in preventing or hindering any agricultural commodity or product thereof produced in any region or area of the United States from being brought into or sold in any other such region or area, or shall have the effect of subsidizing the production or sale of any agricultural commodity or product thereof in any such region or area, in such a manner that such commodity or product thereof will tend to be sold in such other region or area at prices which will tend to depress prices therein of such commodity or product thereof.'
17
'Mr. JONES. Mr. Chairman, the adoption of the amendment of the gentleman from Wisconsin would absolutely wreck the whole milk program. In order to get away from the terrific conditions that have prevailed in the milk industry there is provided in the bill
authority to fix a minimum price to producers. That, at least in a measure, would limit or tend to limit shipment, and yet the gentleman, I am sure, does not want to interfere with the price to producers. Then it is a universal custom in the marketing of milk to classify milk. This, in a way, is a limitation. * * *
'Mr. BOILEAU. * * * Mr. Chairman, I should like to ask the distinguished chairman of the committee if in his opinion there is anything in this bill that gives to the Secretary of Agriculture or to anyone else any power to restrict the free flow of milk or any other commodity between the various States?
'Mr. JONES. No; there is nothing in it that will do that. The only tendency is to make all sections comply with the same rules.
'Mr. HULL. * * * Mr. Chairman, if there is nothing in this bill which would authorize the Secretary of Agriculture or any subordinate so to limit transportation or shipment of dairy products from one State into another, then the amendment of the gentleman from Minnesota as amended by the amendment of the gentleman from Wisconsin (Mr. Sauthoff) can do no harm.
'The three States of Minnesota, Iowa, and Wisconsin, produce about 45 percent of the butter made in this country and we are interested in this matter of the shipment of dairy products to other States.
'Mr. JONES. Mr. Chairman, will the gentleman yield?
'Mr. HULL. I yield.
'Mr. JONES. Would the gentleman object to the requirement that Chicago dealers pay the Wisconsin producer a minimum price?
'Mr. HULL. Not at all.
'Mr. JONES. That certainly would tend to limit.'
18
The '3-month period' provision here referred to is the present § 8c(5)(D) which authorizes the Secretary to set the surplus-use price as the price to be paid to any new producer who enters the pool. In the final version of the Act the introductory period was reduced to two months.
19
'Subsection (d)' is § 8c(5)(D). See note 18, supra.
20
While we need not reach the point, we would have difficulty in concluding, as did the Court of Appeals for the Second Circuit in Kass v. Brannan, supra, that the provisions of § 8c(5)(A) precluded, in themselves, the promulgation of the present compensatory payment provision.
1
297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477.
2
50 Stat. 246, 7 U.S.C. § 601 et seq., 7 U.S.C.A. § 601 et seq.
3
49 Stat. 750.
4
48 Stat. 31.
5
See Nebbia v. New York, 291 U.S. 502, 515—518, 530, 54 S.Ct. 505, 506—508, 513, 78 L.Ed. 940; United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 548—550, 59 S.Ct. 993, 1001 1002, 83 L.Ed. 1446.
6
50 Stat. 246, as amended, 7 U.S.C. § 608c, 7 U.S.C.A. § 608c.
7
49 Stat. 750.
8
50 Stat. 247, 7 U.S.C. § 608c(18), 7 U.S.C.A. § 608c(18).
9
49 Stat. 757, 7 U.S.C. § 608c(7)(D), 7 U.S.C.A. § 608c(7)(D).
10
Congress specifically provided in § 8c(11)(C) of the Act that the Secretary's price-fixing powers were to be exercised on a regional basis rather than a national basis whenever practicable:
'All orders issued under this section which are applicable to the same commodity or product thereof shall, so far as practicable, prescribe such different terms, applicable to different production areas and marketing areas, as the Secretary finds necessary to give due recognition to the differences in production and marketing of such commodity or product in such areas.' 49 Stat. 759, 7 U.S.C. § 608c(11)(C), 7 U.S.C.A. § 608c(11)(C). See also § 8c(11)(A). 49 Stat. 759, 7 U.S.C. § 608c(11)(A), 7 U.S.C.A. § 608c(11)(A).
11
49 Stat. 755, 7 U.S.C. § 608c(5)(G), 7 U.S.C.A. § 608c(5)(G). (Emphasis supplied.)
12
See Bailey Farm Dairy Co. v. Anderson, 8 Cir., 157 F.2d 87, 96; Kass v. Brannan, 2 Cir., 196 F.2d 791, 800 (L. Hand, J., dissenting).
13
The amendment adopted by the Senate but rejected by the Conference is indicated in italics: 'No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, except as provided for milk only in subsection (d), the marketing in that area of any milk or product thereof produced in any production area in the United States.' 79 Cong.Rec. 11655. The wording of this amendment shows that the Court's attempted explanation of why 'in any manner limit' was omitted from the final language of § 8c(5)(G) does not bear analysis. The Court's explanation is that someone might construe 'limit' as prohibiting 'the type of price fixing (limitation) covered by subsection (D).' But it seems very clear that the wording of the Senate amendment was expressly designed to prevent such a construction while at the same time making 'in any manner limit' applicable to milk. Consequently it seems apparent that in rejecting the Senate amendment the Conference was not refusing to apply 'in any manner limit' to milk because to do so would interfere with the operation of subsection (D), but was in fact omitting that language because, to be effective, price fixing itself necessarily required limitations on the selling of outside milk within the area. This is clearly shown by the Conference Report, H.R.Rep. No. 1757, 74th Cong., 1st Sess. 21:
'The Senate amendment extended this provision (§ 8c(5)(G)) so that no marketing agreement or order so applicable could limit in any manner the marketing in the marketing area of milk or its products produced anywhere except that certain limitations on the marketing of milk were specifically permitted. * * * The conference agreement also denied the authority to limit in any manner the marketing in any area of milk product * * * (but) does not refer to milk, and so does not negative the applicability to milk, for use in fluid form or for manufacturing purposes, of the provisions of the bill relating to milk such as the provisions on price fixing, price adjustment, payments for milk, etc.' (Emphasis supplied.)
14
79 Cong.Rec. 9572. (Emphasis supplied.)
15
79 Cong.Rec. 13022. (Emphasis supplied.)
16
See note 9 of the Court's opinion. At least 18 other pools apply a compensatory payment provision like the one in this case for at least part of the year. See note 13 of the Court's opinion.
17
Certainly neither of the formulas which the Court in its note 13 intimates might be proper would protect the farmers in the pool, for neither of these formulas even goes so far as to wipe out the discriminatory advantage that unregulated outside milk has over pool milk. In sustaining the Secretary's regulation in this case the Judicial Officer relied in part on the following reasons:
'(T)he marketwide pool existing under Order No. 27, as amended, carries the longtime and seasonal reserves of milk for numerous secondary markets in Pennsylvania and the Northeastern States. The New York-New Jersey market carries the surplus burden for outside handlers who distribute some milk in the marketing area. These handlers usually have a relatively high percentage of their milk in fluid milk utilization and this utilization is considerably higher than the average for the market regulated by Order No. 27. This higher utilization, of course, results in a competitive advantage in milk procurement to the outside handler as against the regulated handler and outside and regulated handlers draw on the same production area for supplies. Furthermore, the regulated handler has to equalize his utilization with other handlers and his producers are paid on the basis of a uniform price reflecting the utilization in the market as a whole rather than his individual utilization.'
Thus, a compensatory payment, such as the Court suggests, based on the difference between the fluid price and the blend price obviously would do nothing at all to wipe out the advantage that the outside handler has because of his higher fluid-surplus ratio which is due, as shown above, to (1) the fact that the pool carries part of his area's surplus and (2) the fact that he does not have to equalize his own utilization as do pool handlers. Only a compensatory payment which gives the outside handler less for his surplus milk than the pool farmer gets will narrow the competitive advantage which outside milk has. A compensatory payment based on the difference between the fluid price and actual cost, the other alternative suggested by the Court, would obviously be even more subject to this same defect than the fluid-blend price compensatory payment. See also Hutt, Restrictions on the Free Movement of Fluid Milk Under Federal Milk Marketing Orders, 37 U.Det.L.J. 525, 573—576, particularly at note 220.
18
307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211. Cf. Inland Steel Co. v. United States, 306 U.S. 153, 59 S.Ct. 415, 83 L.Ed. 557.
19
307 U.S., at 198, 59 S.Ct., at 803.
20
313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429.
21
The Court's citation of Morgan v. United States, 304 U.S. 1, 23, 58 S.Ct. 773, 999, 82 L.Ed. 1129, as purported justification for its avoidance of this issue is particularly appropriate, and I fear prophetic. For in large part due to this Court's avoidance of a similar issue in the Morgan case, that case wandered through the courts for almost eight years, including four trips to this Court.
22
7 CFR § 1002.29(d).
23
A suit involving the provision of the Cleveland order similar to the one struck down here has already found its way into court. See Lawson Milk Co. v. Benson, D.C., 187 F.Supp. 66, appeal pending.
| 89
|
370 U.S. 139
82 S.Ct. 1218
8 L.Ed.2d 384
Harry LANZA, Petitioner,v.STATE OF NEW YORK.
No. 236.
Argued April 2, 1962.
Decided June 4, 1962.
Leo Pfeffer and Jacob D. Fuchsberg, New York City, for petitioner.
H. Richard Uviller, New York City, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
On February 13, 1957, the petitioner paid a visit to his brother, who was then confined in a New York jail. The two conversed in a room at the jail set aside for such visits. Six days later the petitioner's brother was released from custody by order of one member of the State Parole Commission, under rather unusual circumstances.1 This prompted a committee of the New York Legislature to hold an investigation of possible corruption in the state parole system.2
2
During the course of the committee's investigation, the petitioner was called to testify. He appeared, accompanied by counsel. After granting the petitioner immunity from prosecution, as permitted by state law,3 the committee directed him to answer several questions. For refusing to answer these questions the petitioner was indicted, tried and convicted under a provision of the criminal law of New York.4 His conviction was affirmed on review by the New York courts.5 We granted certiorari, 368 U.S. 918, 82 S.Ct. 239, 7 L.Ed.2d 134, to consider the petitioner's claim that he could not constitutionally be punished for refusing to answer the questions put to him by the state legislative committee, because the conversation he had had with his brother in jail had been electronically intercepted and recorded by officials of the State, and a transcript of that conversation had furnished the basis of the committee's questions. For the reasons which follow, we hold that this constitutional claim is not valid, and we accordingly affirm the judgment before us.
3
The record does not make clear the precise circumstances under which the conversation in the jail between the petitioner and his brother was overheard and transcribed. The State concedes, however, that an electronic device was installed in the room at the Westchester County Jail where the two conversed on February 13, 1957, that without their knowledge their conversation was thereby overheard and transcribed by jail officials, and that a transcript of the conversation was in the hands of the legislative committee when the petitioner was summoned to testify.
4
The petitioner has not questioned the power of the state legislative committee to conduct an investigation into whether the state parole system was being administered honestly and evenhandedly, nor has he questioned the good faith or propriety of the particular investigation which gave rise to the present case. His argument is simply that the interception of the jail conversation was a violation of those principles of the Fourth Amendment which have found recognition in the Due Process Clause of the Fourteenth, that it was accordingly impermissible for the state legislative committee to make use of the transcript of that conversation in interrogating him, and that New York therefore denied him due process of law by convicting him for refusing to answer the committee's questions.6
5
The Fourth Amendment specifically insures the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,' by federal officers. We may take it as settled that the Fourteenth Amendment gives to the people like protection against the conduct of the officials of any State. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.
6
The petitioner's argument thus necessarily begins with two assumptions: that the visitors' room of a public jail is a constitutionally protected area, and that surreptitious electronic eavesdropping under certain circumstances may amount to an unreasonable search or seizure. As to the second there can be no doubt. This Court through the years has not taken a literal or mechanical approach to the question of what may constitute a search or seizure.7 And as recently as last Term we specifically held that electronic eavesdropping by federal officers, accomplished by physical intrusion into the wall of a house, violated the Fourth Amendment rights of the occupants. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734.
7
But to say that a public jail is the equivalent of a man's 'house' or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area,8 and so may be a store.9 A hotel room, in the eyes of the Fourth Amendment, may become a person's 'house,'10 and so, of course, may an apartment.11 An automobile may not be unreasonably searched.12 Neither may an occupied taxicab.13 Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.14 Though it may be assumed that even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection,15 there is no claimed violation of any such special relationship here.
8
But even if we accept the premise that the room at the jail where the petitioner and his brother conversed was an area immunized by the Constitution from unreasonable search and seizure, and even though we put to one side questions as to the petitioner's standing to complain,16 the petitioner's argument would still carry far beyond any decision which this Court has yet rendered. The case before us bears no resemblance to such cases as Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948, where a State attempted to use as evidence in a criminal trial a confession which had been elicited by trickery from the defendant while he was in jail. See also Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. We do not have here the introduction into a state criminal trial of evidence which is claimed to have been unconstitutionally seized, as in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Nor is this a case where it is claimed that the evidence actually offered at a trial was procured through knowledge gained from what had been unlawfully obtained—the 'fruit of the poisonous tree.' Cf. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.
9
Here no such evidence was ever introduced in a prosecution against the petitioner. Rather, the petitioner was convicted for willfully refusing to answer the pertinent questions of a duly constituted legislative committee in the conduct of an authorized legislative investigation, after having been given immunity from prosecution. To hold that the petitioner could not constitutionally be convicted for refusing to answer such questions simply because they related to a conversation which had been unlawfully overheard by other state officials would thus be a completely unprecedented step.
10
The ultimate disposition of this case, however, does not demand consideration of whether such a step might ever be constitutionally required. For even if all the other doubtful issues should be resolved in the petitioner's favor, the record conclusively shows that at least two of the questions which the committee asked him were not related in any way to the intercepted conversation. The petitioner was asked to whom he had talked in February, 1957, about releasing his brother on parole.17 He was asked to describe the efforts he had made to assist in obtaining his brother's release.18 Not only is it apparent on their face that these questions were not dependent upon the conversation overheard at the jail, but committee counsel unequivocally so testified at the petitioner's trial.19 Costello v. United States, 365 U.S. 265, 279—280, 81 S.Ct. 534, 541, 542, 5 L.Ed.2d 551. Refusal to answer either of these questions fully supports the judgment as modified by the New York courts.20 Whitfield v. Ohio, 297 U.S. 431, 438, 56 S.Ct. 532, 534, 80 L.Ed. 778.
11
Moreover, the record contains no basis for supposing that the committee would not have called the petitioner to testify, had it not been in possession of a transcript of the recorded jail conversation—assuming, arguendo, that such an attenuated connection would help the petitioner's case. See Costello v. United States, supra. Indeed, it is reasonable to infer that the petitioner would have been interrogated even if the transcript of the conversation had not existed. The committee knew of the suspicious circumstances surrounding the release of the petitioner's brother.21 The committee knew that the petitioner had been one of the three visitors the brother had had during his stay in jail.22 And the record shows that the committee had other independent information which could have occasioned the petitioner's interrogation. In short, we conclude that the ultimate constitutional claim asserted in this case, whatever its merits, is simply not tendered by this record.
12
Affirmed.
13
Mr. Justice FRANKFURTER took no part in the decision of this case.
14
Mr. Justice WHITE took no part in the consideration or decision of this case.
15
Mr. Justice HARLAN, concurring.
16
I do not understand anything in the Court's opinion to suggest either that the Fourteenth Amendment 'incorporates' the provisions of the Fourth, or that the 'liberty' assured by the Fourteenth Amendment is, with respect to 'privacy,' necessarily coextensive with the protections afforded by the Fourth. On that premise, I join the Court's opinion.
17
Memorandum opinion of Mr. Chief Justice WARREN.
18
I agree with Mr. Justice BRENNAN that the decision of the New York courts comes to us resting firmly upon an independent state ground and I therefore join his memorandum opinion. However, because the opinion of the Court departs from our practice of refusing to reach constitutional questions not necessary for decision, I deem it appropriate to add a few words.
19
Unquestionably, all that the Court's opinion decides is that since two of the questions asked petitioner by the Committee were not in any way related to the intercepted conversation, the refusal to answer those questions alone 'fully supports the judgment as modified by the New York courts.' Ante, 370 U.S., p. 146, 82 S.Ct., p. 1222. Despite the fact that this holding deprives the Court of jurisdiction to intimate views on the other, more serious problems of constitutional dimension presented by the record, Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789; Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U.S. 157, 37 S.Ct. 318, 61 L.Ed. 644; Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429, and would warrant dismissing the writ as improvidently granted, Benz v. New York State Thruway Authority, 369 U.S. 147, 82 S.Ct. 674, 7 L.Ed.2d 634; Atchley v. California, 366 U.S. 207, 81 S.Ct. 1051, 6 L.Ed.2d 233, the opinion undertakes, as Mr. Justice BRENNAN characterizes it, a 'gratuitous exposition' upon those more difficult constitutional problems originally thought presented for decision. These expressions of dicta are in a form which can only lead to misunderstanding and confusion in future cases. Such dicta, when written into our decisions, have an unfortunate way of turning up in digests and decisions of lower courts; they are often quoted as evidencing the considered opinion of this Court, and this is so even though such intention is denied by the writer.
20
I am expressing my views separately because I believe that for several reasons it is particularly regrettable for the Court to depart from its normal practice in this case. The New York Court of Appeals, the highest court of the State, split 4—3 on the result reached below. And, because that court did not write a full opinion in announcing its decision, we cannot tell whether it intended to decide the constitutional issues or whether it even considered them. Its remittitur is unconvincing in determining whether its judgment was intended to rest on an independent state ground. See Benz v. New York State Thruway Authority, supra. What makes this Court's action singularly unfortunate is that the state courts, state officials and the people of New York State, have uniformly condemned the eavesdropping in this case as deplorable. The New York Appellate Division termed the action at the jail 'reprehensible and offensive,' People v. Lanza, 10 App.Div.2d 315, 318, 199 N.Y.S.2d 598, 601; earlier the court had called it 'atrocious and inexcusable,' Lanza v. New York State Joint Legislative Committee, 3 App.Div.2d 531, 533, 162 N.Y.S.2d 467, 470; also 'flagrant and unprecedented,' Matter of Reuter, 4 App.Div.2d 252, 255, 164 N.Y.S.2d 534, 538. In the Court of Appeals it was characterized as a 'gross wrong,' Lanza v. New York State Joint Legislative Committee, 3 N.Y.2d 92, 101, 164 N.Y.S.2d 9, 16, 143 N.E.2d 772, 777 (dissenting opinion), and counsel for the Joint Committee made no effort to justify or excuse the action, but on the contrary himself called it 'repulsive and repugnant,' ibid. The Governor of New York termed unchecked eavesdropping 'unwholesome and dangerous,' McKinney's 1958 Session Laws of New York, p. 1837; and the Chairman of the New York Joint Legislative Committee on Privacy of Communications called the incident 'deplorable' and reported that it had 'brought forth a storm of protest from lawyers, some of whom had not previously been audibly concerned (with) * * * efforts to protect the people's right of privacy.' Report of the New York Joint Legislative Committee on Privacy of Communications, Legislative Document (1958) No. 9, 25. It has been reported that a New York trial court judge found it necessary to release a prisoner without bail so that he would be able to consult his attorney, the judge not being able to feel confident after this incident that there was any jail in the State where the prisoner and his lawyers could be secure against electronic eavesdropping. Comment, 27 Fordham L.Rev. 390, 394, n. 35. The most striking indication of the degree to which the people of the State of New York were shocked by the incident was the enactment of Article 73 of the Penal Law of New York, making it a felony to do what the officials in this case did. And finally the Appellate Division of the Supreme Court, affirmed by the New York Court of Appeals, reduced the bizarre and unprecedented sentence of ten years for contempt of court to one year.
21
It seems to me that when this Court puts its imprimatur upon conduct so universally reproached by every branch of the government of the State in which the case arose, we invite official lawlessness which, in the long run, can be far more harmful to our society than individual contumacy.
22
Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur in this opinion.
23
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join.
24
I must protest the Court's gratuitous exposition of several grave constitutional issues confessedly not before us for decision in this case. The tenor of the Court's wholly unnecessary comments is sufficiently ominous to justify the strongest emphasis that of the abbreviated Court of seven who participate in the decision, fewer than five will even intimate views that the constitutional protections against invasion of privacy do not operate for the benefit of persons—whether inmates or visitors—inside a jail, or that the petitioner lacks standing to challenge secret electronic interception of his conversations because he has not a sufficient possessory interest in the premises, or that the Fourth Amendment cannot be applied to protect against testimonial compulsion imposed solely as a result of an unconstitutional search or seizure.
25
The petitioner was convicted on several counts for failure to answer each of a number of questions put to him by a state legislative committee. On appeal, the judgment, which had imposed 10 identical sentences to run consecutively, was modified by the Appellate Division to provide that the sentences on each count should run concurrently. The record shows, affirmatively and without rebuttal, that at least two of the questions were conceived and propounded independently of the search and seizure which the petitioner claims infringed his constitutional rights; and there is nothing which supports his contention that he would not have been questioned at all but for that claimed infringement.
26
Under these circumstances, it is apparent that the judgment of the Court of Appeals of New York can be adequately supported by an independent ground of state law. It is the settled law of that court that there is no occasion to review a conviction on one count of an indictment or information if the judgment and sentence are sufficiently sustained by another count.1 Since this Court is thus able to see that the judgment of the court below—which is unelucidated by any opinion—is maintainable on an adequate, independent state ground, it should forbear from any further review of the case; for, in light of the clearly established New York law, a decision by this Court on the federal questions sought to be tendered here would be but an exercise in futility.2 In any event, historic principles demand that any consideration of constitutional issues at least abide a clarification from the court below as to the basis for its judgment, in order 'that this Court not indulge in needless dissertations on constitutional law.' Minnesota v. National Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920.
27
I do not mean, however, that I would seek clarification in this case. It taxes credulity to suppose that the court below would disagree with the majority here that two of the counts are free of any taint, or depart from its own settled doctrine that even one such count requires affirmance. And even if this Court were somehow free to disregard the law of New York, the Court has in the past limited its review of a state conviction in accordance with 'the rule, frequently stated by this court, that a judgment upon an indictment containing several counts, with a verdict of guilty upon each, will be sustained if any count is good, and sufficient in itself to support the judgment.' Whitfield v. Ohio, 297 U.S. 431, 438, 56 S.Ct. 532, 534, 80 L.Ed. 778.
28
While the Court does ultimately rest its disposition of the case on this ground, it does so by way of affirmance. It is at least arguable that the proper disposition is to dismiss the case because certiorari was improvidently granted. Benz v. New York State Thruway Authority, 369 U.S. 147, 82 S.Ct. 674, 7 L.Ed.2d 634;3 Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158. But in no event is it arguable that any of the constitutional questions the Court reaches are before it.
1
Four parole officers had concurred in a report finding that the petitioner's brother was 'not a fit subject for restoration to parole.' This report had been endorsed by three superiors in the Division of Parole. Shortly after receiving these recommendations a member of the Commission ordered the petitioner's brother released.
2
The committee was the Joint Legislative Committee on Government Operations, created by the New York Legislature in 1955. This committee was endowed with 'full power and authority to investigate, inquire into and examine the management and affairs of any department, board, bureau, commission * * * of the state, and all questions in relation thereto * * *.' The committee was specifically authorized to investigate 'the administration of state and local laws and the detection and prevention of unsound, improper or corrupt practices in connection therewith.'
3
New York Penal Law, McKinney's Consol.Laws, c. 40, §§ 381, 584, 2447.
4
New York Penal Law, § 1330: 'A person who being present before either house of the legislature or any committee thereof authorized to summon witnesses, wilfully refuses to be sworn or affirmed, or to answer any material and proper question, or to produce upon reasonable notice any material and proper books, papers, or documents in his possession or under his control, is guilty of a misdemeanor.'
5
The Appellate Division modified the judgment by directing that the terms imposed on the several counts of the indictment be served concurrently. 10 App.Div.2d 315, 199 N.Y.S.2d 598. The New York Court of Appeals modified the judgment further, holding that the petitioner had committed but a single crime in refusing to answer the various questions put to him by the committee. 9 N.Y.2d 895, 216 N.Y.S.2d 706, 175 N.E.2d 833.
6
The New York Court of Appeals made clear that it had passed upon this federal constitutional claim, and that its judgment was not based upon an independent state ground. Its amended remittitur was as follows:
'Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Defendant argued that the imposition of penal sanctions for his refusal to answer certain questions deprived him of liberty without due process of law in violation of the Fourteenth Amendment. The Court of Appeals held that defendant's constitutional rights were not violated.'
7
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477; cf. Irvine v. California, 347 U.S. 128, 132, 74 S.Ct. 381, 382, 98 L.Ed. 561; see also Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690; McGinnis v. United States, 1 Cir., 227 F.2d 598.
8
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.
9
Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453.
10
Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819; United States v. Jeffers, 342 U.S. 48, 72 L.Ed. 93, 96 L.Ed. 59.
11
Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.
12
Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134.
13
Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.
14
N.Y.Correction Law, McKinney's Consol.Laws, c. 43, § 500 c provides, in part: 'Convicts under sentence shall not be allowed to converse with any other person, except in the presence of a keeper.'
The N.Y. State Commission of Correction, Regulations for Management of County Jails (Revised 1953 ed.), provide, in part:
'All parts of the jail should be frequently searched for contraband.
'A thorough search should be made of all packages to prevent forbidden articles being smuggled into the jail. The number of articles permitted to be taken into the jail should be kept to a minimum. Saws have been secreted in bananas, in the soles of shoes, under the peaks of caps, and drugs may be secreted in cap visors, under postage stamps on letters, in cigars and various other ways. Constant vigilance is necessary if your jail is to be kept safe.
'Cells should be systematically searched for materials which would serve as a weapon or medium of self-destruction or escape. Razor blades are small and easily concealed.
'The law requires that visitors be carefully supervised to prevent passing in of weapons, tools, drugs, liquor and other contraband.
'In jails where a visitors' booth is provided, the safe-keeping of prisoners, especially those held for serious crimes, will be best insured if the booths are used for visits. Where there are no booths, and where prisoners are permitted to receive visitors in the corridors or jailer's office, visits should be closely supervised. Experience has shown that laxity in supervising visitors and searching packages has resulted in escapes, assaults on officer and serious breaches of discipline.'
15
Cf. Lanza v. N.Y. State Joint Legislative Committee, 3 N.Y.2d 92, 164 N.Y.S.2d 9, 143 N.E.2d 772, affirming 3 App.Div.2d 531, 162 N.Y.S.2d 467; Matter of Reuter, 4 App.Div.2d 252, 164 N.Y.S.2d 534; see Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749.
16
See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.
17
'Mr. Lanza, please tell the committee the name of anybody with whom you spoke during the month of February 1957 about the restoration to parole of your brother Joseph Lanza.'
18
'On February 5, 1957, your brother Joseph Lanza was arrested and returned to prison charged with a violation of parole. Tell the committee, please, any and all efforts extended by you to assist in obtaining the release of your brother Joseph Lanza on parole or his restoration to parole.'
19
'Q. You say that you did not gather any material from the tapes upon which to predicate that question, Mr. Bauman? A. I have said and I say, Mr. Direnzo, that that question as well as the previous one was not based upon any material in the tapes.
'Q. You are sure about that? A. Yes.'
20
See note 5.
21
See note 1.
22
The others were the brother's wife and his lawyer.
1
See People v. Faden, 271 N.Y. 435, 3 N.E.2d 584; People v. Cummins, 209 N.Y. 283, 103 N.E. 169; Hope v. People, 83 N.Y. 418; People v. Davis, 56 N.Y. 95. That is also the federal rule, see Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774.
In affirming the conviction, the Appellate Division found it unnecessary to pass on the petitioner's contention that he could be convicted of only a single crime because, the judgment having been modified to cause the sentences to run concurrently, 'the conviction on any one count is sufficient to sustain the sentence * * *. People v. Faden, 271 N.Y. 435, 444 (445), 3 N.E.2d 584, 587.' 10 App.Div.2d 315, 319, 199 N.Y.S.2d 598, 603. The Court of Appeals, which in affirming without opinion modified the judgment to make clear that only a single crime had been committed, found no occasion to re-examine the sentence because 'It is clear * * * that the number of crimes of which the defendant was found guilty did not enter into the duration of the sentence imposed.' 9 N.Y.2d 895, 897, 216 N.Y.S.2d 706, 175 N.E.2d 833.
2
Compare Bachtel v. Wilson, 204 U.S. 36, 27 S.Ct. 243, 51 L.Ed. 357, in which the Court dismissed a writ of error to the Supreme Court of Ohio, which had written no opinion. The Court said, at p. 40, 27 S.Ct. at p. 245: 'Before we can pronounce (the judgment of the court below) in conflict with the Federal Constitution it must be made to appear that its decision was one necessarily in conflict therewith, and not that possibly, or even probably, it was * * *. We do not decide (that the state statute is to be given a construction which would render it constitutional), but we do hold that, in view of the silence of the supreme court, we are not justified in assuming that it (did not so construe the statute).'
3
In Benz, as here, the Court of Appeals had granted the petitioner an amended remittitur reciting that it has necessarily passed upon a federal constitutional question, to wit: 'Whether plaintiff was deprived of just compensation in violation of the due process clause of the Fourteenth Amendment.' Notwithstanding that representation, we concluded that the Court of Appeals had 'decided no more than' a question relating to state court jurisdiction. That action was entirely consistent with Honeyman v. Hanan, 300 U.S. 14, 18—19, 57 S.Ct. 350, 352, 81 L.Ed. 476: 'A certificate or statement by the state court that a federal question has been presented to it and necessarily passed upon is not controlling. While such a certificate or statement may aid this Court in the examination of the record, it cannot avail to foreclose the inquiry which it is our duty to make or to import into the record a federal question which otherwise the record wholly fails to present.' Indeed, as Honeyman v. Hanan, supra, and Honeyman v. Hanan, 302 U.S. 375, 58 S.Ct. 273, 82 L.Ed. 312, illustrate, proper pursuit of the matter when suspicions are aroused may disclose that a state court's certificate simply did not mean what it appeared, at first glance, to say.
The remittitur in this case recited: 'Defendant argued that the imposition of penal sanctions for his refusal to answer certain questions deprived him of liberty without due process of law in violation of the Fourteenth Amendment. The Court of Appeals held that defendant's constitutional rights were not violated.' The Court of Appeals wrote no opinion, and it is understood in New York that 'affirmance without opinion is merely an adoption of the result reached by the Appellate Division, the reasoning of which is not necessarily adopted.' Carmody's New York Practice (7th ed. 1956) 678. See Commissioner of Public Welfare v. Jackson, 265 N.Y. 440, 441, 193 N.E. 262; Soderman v. Stone Bar Associates, Inc., 208 Misc. 864, 867, 146 N.Y.S.2d 233, 236. For all we can tell, the Court of Appeals concluded that the petitioner's 'constitutional rights were not violated' by reasoning that the two untainted questions supported the conviction.
| 01
|
370 U.S. 159
82 S.Ct. 1231
8 L.Ed.2d 407
Harry Clifford PORTER, Petitioner,v.AETNA CASUALTY AND SURETY COMPANY.
No. 604.
Argued April 25, 1962.
Decided June 11, 1962.
Ethelbert B. Frey, Washington, D.C., for petitioner.
John G. Laughlin, Jr., Washington, D.C., for the United States, as amicus curiae.
John L. Laskey, Washington, D.C., for the respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case raises the question of whether benefits paid by the United States Veterans' Administration retain their exempt status under 38 U.S.C. § 3101(a), 38 U.S.C.A. § 3101(a)1 after being deposited in an account in a federal savings and loan association. Petitioner, an incompetent Air Force veteran, had suffered a judgment at the hands of respondent. The latter in an effort to satisfy its judgment attached a checking account and two accounts in local federal savings and loan associations, all of which had been established by petitioner's Committed with funds received from the Veterans' Administration as disability compensation due the petitioner. The District Court, on motion, held all three of the accounts exempt under the statute. 185 F.Supp. 302. Respondent appealed as to the savings and loan association accounts, and the Court of Appeals for the District of Columbia reversed in a divided opinion. 111 U.S.App.D.C. 267, 296 F.2d 389. Certiorari was granted in view of the importance of the question in the administration of the Act. 368 U.S. 937, 82 S.Ct. 384, 7 L.Ed.2d 337. We agree with the District Court that the funds involved here are exempt under the statute; therefore we reverse the judgment below.
2
Since 1873 it has been the policy of the Congress to exempt veterans' benefits from creditor actions as well as from taxation.2 In 1933 in Trotter v. Tennessee, 290 U.S. 354, 54 S.Ct. 138, 78 L.Ed. 358, the Court had occasion to pass upon the exemptive provision of the World War Veterans' Act of 1924, 43 Stat. 607, 613. It held that the exemption spent its force when the benefit funds 'lost the quality of moneys' and were converted into 'permanent investments.' This distinction was adopted by the Congress when the Act was amended in 1935, 49 Stat. 607, 609, to provide, inter alia, that such payments shall be exempt 'either before or after receipt by the beneficiary' but that the exemption shall not 'extend to any property purchased in part or wholly out of such payments.'3 Thereafter in Lawrence v. Shaw, 300 U.S. 245, 57 S.Ct. 443, 81 L.Ed. 623 (1937), the Court held that bank credits derived from veterans' benefits were within the exemption, the test being whether as so deposited the benefits remained subject to demand and use as the needs of the veteran for support and maintenance required. It was noted that the allowance of interest on such deposits would not destroy the exemption. Two years later the Court held that negotiable notes and United States bonds purchased with veterans' benefits and 'held as investments' had no federal statutory immunity. Carrier v. Bryant, 306 U.S. 545, 59 S.Ct. 707 (1939). The Act was again amended in 1958, but no significant changes were made in the exemption provision. As so written it is here at issue.
3
It appears that the practices and procedures vary as to withdrawal of funds from federal savings and loan associations. Under the law the depositor is a shareholder rather than a creditor, and his deposits are subject to withdrawal only after a 30-day demand. However, the District Court found that a withdrawal from the accounts here involved could be made 'as quickly as a withdrawal from a checking account * * *.' In addition, the integrity of the deposits was assured by federal supervision of the associations plus federal insurance of the accounts. Under such conditions the funds were subject to immediate and certain access and thus plainly had 'the quality of moneys.' As to whether the deposits were 'permanent investments,' we note they were not of a speculative character nor were they time deposits at interest. Moreover, it affirmatively appears that at times petitioner drew moneys from the savings and loan fund for his support and maintenance requirements and that no other funds whatever are now available to him, his disability payments having been cut off. It therefore appears clear to us that the savings and loan deposits here, rather than being investments, are the only funds presently available to meet petitioner's needs.
4
Since legislation of this type should be liberally construed, see Trotter v. Tennessee, supra, 290 U.S. at 356, 54 S.Ct. at 139 to protect funds granted by the Congress for the maintenance and support of the beneficiaries thereof, Lawrence v. Shaw, supra, 300 U.S. at 250, 57 S.Ct. at 445 we feel that deposits such as are involved here should remain inviolate. The Congress, we believe, intended that veterans in the safekeeping of their benefits should be able to utilize those normal modes adopted by the community for that purpose—provided the benefit funds, regardless of the technicalities of title and other formalities, are readily available as needed for support and maintenance, actually retain the qualities of moneys, and have not been converted into permanent investments.
5
Reversed.
6
THE CHIEF JUSTICE and Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
7
Mr. Justice DOUGLAS.
8
Heretofore the test of exemption under this Act has been whether the funds had taken the form of 'permanent investments,' on the one hand (Trotter v. Tennessee, 290 U.S. 354, 357, 54 S.Ct. 138, 139, 78 L.Ed. 358), or on the other were 'subject to draft upon demand,' as in the case of checking accounts. Lawrence v. Shaw, 300 U.S. 245, 250, 57 S.Ct. 443, 445, 81 L.Ed. 623. Negotiable notes and United States bonds were held to be nonexempt in Carrier v. Bryant, 306 U.S. 545, 59 S.Ct. 707, 83 L.Ed. 976. Yet so far as we know, those notes and bonds may have had the same or a comparable degree of liquidity as the present share account in the federal savings and loan association enjoys. Today, however, we hold these accounts exempt. Stocks and bonds cannot, of course, be fractionalized and converted into cash in small amounts, such as may be done with savings accounts and checking accounts. But stocks and bonds may be so liquid as to be tantamount to cash in hand and therefore serve, as well as any bank deposit, the needs of the veteran.
9
By the standards announced in the earlier decisions share accounts in federal savings and loan associations are 'investments.' See Wisconsin Bankers Ass'n v. Robertson, 111 U.S.App.D.C. 85, 294 F.2d 714. They can be withdrawn only after 30 days' notice. The owner of a share account is a voting member of the association which, as the Court of Appeals noted, makes him 'more nearly comparable to a stockholder of a bank than one of its depositors.' 111 U.S.App.D.C. 267, 270, 296 F.2d 389, 392. Moreover, the Home Owners' Loan Act, under which this federal association was created, makes clear that its purpose is 'to provide local mutual thrift institutions in which people may invest their funds.' 12 U.S.C. § 1464(a), 12 U.S.C.A. § 1464(a). (Italics added.) Its capital1 is in 'shares' (12 U.S.C. § 1464(b), 12 U.S.C.A. § 1464(b)) such as are involved here. The holders of savings accounts who apply for a withdrawal of funds do not thereby become 'creditors.'2
10
In some States these share accounts may not be as liquid as checking accounts or even as liquid as stocks and bonds listed on an exchange or actively traded over-the-counter. The true test seems to me to be liquidity—that is to say, whether or not the moneys are kept in a form in which they are usable, if need be, 'for the maintenance and support of the veteran,' as Chief Justice Hughes said in Lawrence v. Shaw, supra, 300 U.S. at 250, 57 S.Ct. at 445.
1
'(a) Payments of benefits due or to become due under any law administered by the Veterans' Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. The preceding sentence shall not apply to claims of the United States arising under such laws nor shall the exemption therein contained as to taxation extend to any property purchased in part or wholly out of such payments. The provisions of this section shall not be construed to prohibit the assignment of insurance otherwise authorized under chapter 19 of this title, or of servicemen's indemnity.'
2
Act of Mar. 3, 1873, R.S. § 4747 (1878); World War Veterans' Act of 1924, c. 320, § 22, 43 Stat. 607, 613; Act of Aug. 12, 1935, c. 510, § 3, 49 Stat. 607, 609.
3
The statutory language reads only that the exemption 'as to taxation' shall not extend to property purchased with benefits. However, in Carrier v. Bryant, 306 U.S. 545, 59 S.Ct. 707, 83 L.Ed. 976 (1939), the Court held that benefits invested in property were also nonexempt from creditor actions, since they were not "payments of benefits' due or to become due' and thus did not fall within the initial immunizing language.
1
'Capital' means 'the aggregate of the payments on savings accounts,' plus earnings, less deductions. See 12 CFR § 541.3. 'Savings account,' such as we have here, is 'the monetary interest of the holder' in the 'capital' of the association. Id., § 541.4. The account book evidence 'the ownership of the account and the interest of the holder thereof in the capital' of the Association. 12 CFR § 545.2(b).
2
'Holders of savings accounts for which application for withdrawal has been made shall remain holders of savings accounts until paid and shall not become creditors.' 12 CFR § 544.1(a) par. 6.
| 12
|
370 U.S. 173
82 S.Ct. 1237
8 L.Ed.2d 418
MARINE ENGINEERS BENEFICIAL ASSOCIATION et al., Petitioners,v.INTERLAKE STEAMSHIP COMPANY et al.
No. 166.
Argued April 16, 1962.
Decided June 11, 1962.
Mr. Lee Pressman, New York City, for petitioners.
Raymond T. Jackson, Cleveland, Ohio, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
In San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, this Court held that the proper administration of the federal labor law requires state courts to relinquish jurisdiction not only over those controversies actually found to be within the jurisdiction of the National Labor Relations Board, but also over litigation arising from activities which might arguably be subject to that agency's cognizance. Only such a rule, the Court held, will preserve for the Labor Board its congressionally delegated function of deciding what is and what is not within its domain.1 In the present case the Supreme Court of Minnesota held that the petitioners, Marine Engineers Beneficial Association (MEBA) and its Local 101, were not 'labor organizations' within the meaning of § 8(b) of the Labor Management Relations Act, 29 U.S.C. § 158(b), 29 U.S.C.A. § 158(b), and therefore not subject to the unfair labor practice provisions of that section of the statute. Accordingly, the court held that a state trial court had not erred in assuming jurisdiction over a labor dispute involving MEBA and Local 101, and in permanently enjoining them from picketing found to be in violation of state law. 260 Minn. 1, 108 N.W.2d 627. We granted certiorari, 368 U.S. 811, 82 S.Ct. 44, 7 L.Ed.2d 20, to consider an asserted conflict between the Minnesota court's decision and our holding in the Garmon case.
2
The essential facts which gave rise to this controversy are not in dispute. The respondents owned and operated a fleet of bulk cargo vessels on the Great Lakes. MEBA and Local 101 were unions which represented marine engineers employed on the Great Lakes and elsewhere.2 The marine engineers employed by the respondents were not represented by MEBA or any other union.
3
On November 11, 1959, the respondents' vessel, Samuel Mather, arrived at the dock of the Carnegie Dock and Fuel Company in Duluth, Minnesota. The following morning several members of Local 101 began to picket at the only entrance road to the Carnegie dock. They carried signs which read: 'Pickands Mather Unfair to Organized Labor. This Dispute Only Involves P—M. M.E.B.A. Loc. 101 AFL—CIO.' and 'M.E.B.A. Loc. 101. AFL—CIO. Request P—M Engineers to Join with Organized Labor to Better Working Conditions. This Dispute Only Involves P—M.' When the pickets appeared, employees of the Carnegie Dock and Fuel Company refused to continue unloading the Samuel Mather. As a result the ship was forced to remain at the dock, and another of the respondents' steamers, the Pickands, was compelled to ride at anchor outside the harbor for a number of days, because the Carnegie dock could accommodate but one vessel at a time.
4
Upon learning of the picket line, the respondents filed a complaint in the state court charging the union with several violations of state law. The complaint alleged, among other things, that the petitioners had induced Carnegie's employees to refuse to perform services, and that the petitioners had thus caused Carnegie to breach its contract with the respondents. The petitioners filed a motion to dismiss the complaint, claiming that the dispute was arguably subject to the jurisdiction of the National Labor Relations Board and thus, under the Garmon doctrine, beyond the state court's cognizance.3 Evidence was taken concerning the nature and effect of the picketing, the employment status of respondents' marine engineers, and, to a limited extent, the characteristics of MEBA and Local 101. The trial court concluded that the dispute was within its jurisdiction, and, finding the picketing to be in violation of Minnesota law, it issued a temporary injunction prohibiting the petitioners from picketing at or near any site where the respondents' vessels were loading or unloading, from inducing other employees or other firms not to perform services for the respondents, and from interfering in other specified ways with the respondents' operations. The injunction was later made permanent on the basis of the same record, and the court's judgment was affirmed on review by the Supreme Court of Minnesota.
5
The Garmon case dealt with rules of conduct—whether certain activities were protected by § 7 or prohibited by § 8 of the Act. In the present case it has hardly been disputed, nor could it be, that the petitioners' conduct was of a kind arguably prohibited by § 8(b)(4)(A) of the Act and thus within the primary jurisdiction of the Board, if MEBA and Local 101 were 'labor organizations' within the contemplation of § 8(b) generally.4 The Minnesota courts determined, however, that those whom the petitioners represented and sought to enlist were 'supervisors,' that consequently neither of the petitioners was a 'labor organization,' and therefore that nothing in the Garmon doctrine precluded a state court from assuming jurisdiction.
6
It is the petitioners' contention that the issue to be determined in this case is not whether the state courts correctly decided their 'labor organization' status, but whether the state courts were free to finally decide that issue at all. The petitioners contend that the principles of the Garmon decision confined the state court to deciding only whether the evidence in this case was sufficient to show that either of them was arguably a 'labor organization' within the contemplation of § 8(b). We agree, and hold that the evidence was sufficient to deprive the Minnesota courts of jurisdiction over this controversy.
7
We see no reason to assume that the task of interpreting and applying the statutory definition of a 'labor organization' does not call for the same adjudicatory expertise that the Board must bring to bear when it determines the applicability of §§ 7 and 8 of the Act to substantive conduct. Indeed, analysis of the problem makes clear that the process of defining the term 'labor organization' is one which may often require the full range of Board competence.
8
The term 'labor organization' is defined by § 2(5) of the Act, which says:
9
'The term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.' 29 U.S.C. § 152(5), 29 U.S.C.A. § 152(5).
10
The part of that definition at issue in the present case is the requirement that 'employees participate' in the organization. As defined by § 2(3) of the Act, '(t)he term 'employee' * * * shall not include * * * any individual employed as a supervisor * * *.' 29 U.S.C. § 152(3), 29 U.S.C.A. § 152(3).5 'Supervisor' is defined in turn by § 2(11) of the Act to mean:
11
'* * * any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.' 29 U.S.C. § 152(11), 29 U.S.C.A. § 152(11).
12
The statutory definition of the term 'supervisor' has been the subject of considerable litigation before the NLRB and in the federal courts.6 It is immediately apparent, moreover, that the phrase 'organization * * * in which employees participate' is far from self-explanatory. Several recurring questions stem from the fact that national or even local unions may represent both 'employees' and 'supervisors.'7 For example, is employee participation in any part of a defendant national or local union sufficient, or must 'employees' be involved in the immediate labor dispute?8 What percentage or degree of employee participation in the relevant unit is required?9 If an organization is open to 'employees' or solicits their membership, must there be a showing that there are actually employee members? And, if a local union is not itself a 'labor organization,' are there conditions under which it may become subject to § 8(b) as an agent of some other organization which is?10
13
The considerations involved in answering these questions are largely of a kind most wisely entrusted initially to the agency charged with the day-to-day administration of the Act as a whole. The term 'labor organization' appears in a number of sections of the Act. Section 8(a)(2), for example, forbids employers to 'dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it * * *.' 29 U.S.C. § 158(a)(2), 29 U.S.C.A. § 158(a)(2). Section 8(a)(3) makes it an unfair labor practice for an employer, by certain discriminatory conduct, 'to encourage or discourage membership in any labor organization * * *.' 29 U.S.C. § 158(a)(3), 29 U.S.C.A. § 158(a)(3). Section 9(c), dealing with the largely unreviewable area of representation elections,11 refers repeatedly to both 'employees' and 'labor organizations.' The policy considerations underlying these and other sections of the Act, and the relationship of a particular definitional approach under § 8(b) to the meaning of the same term in the various sections, must obviously be taken into account if the statute is to operate as a coherent whole.12 A centralized adjudicatory process is also essential in working out a consistent approach to the status of the many separate unions which may represent interrelated occupations in a single industry.13 Moreover, as the national agency charged with the administration of federal labor law, the Board should be free in the first instance to consider the whole spectrum of possible approaches to the question, ranging from a broad definition of 'labor organization' in terms of an entire union to a narrow case-by-case consideration of the issue. Only the Board can knowledgeably weigh the effect of either choice upon the certainty and predictability of labor management relations, or assess the importance of simple administrative convenience in this area.14
14
For these reasons we conclude that the task of determining what is a 'labor organization' in the context of § 8(b) must in any doubtful case begin with the National Labor Relations Board, and that the only workable way to assure this result is for the courts to concede that a union is a 'labor organization' for § 8(b) purposes whenever a reasonably arguable case is made to that effect. Such a case was made in the Minnesota courts.
15
There persuasive evidence was introduced to show that all the marine engineers employed by the respondents were in fact supervisors.15 It was also shown that MEBA had steadfastly maintained in proceedings before the NLRB that it was not a labor organization subject to § 8(b) of the Act.16 However, the petitioners introduced into the record two recent Board decisions, one holding that MEBA was subject to § 8(b) and was guilty of an unfair labor practice for engaging in an activity similar to that involved in this case,17 and the other holding that marine engineers represented by a branch of Local 101 were 'employees' for the purpose of a § 9(c) election.18 The Board's order in the first case was enforced by the Court of Appeals for the Second Circuit on January 13, 1960, during the pendency of the present litigation in the Minnesota trial court.19 The state court's attention was expressly called to the Board's theory, subsequently adopted by the Court of Appeals for the Second Circuit, that the relevant unit of membership for determining what is a labor organization in a § 8(b) context is the entire union, and to the holding that the known membership of a few 'employees,' provisions in the union's constitution making membership available to 'employees,' and previous conduct indicative of 'employee' representation were sufficient to render the national union a 'labor organization.' See 121 N.L.R.B., at 209—210; 274 F.2d, at 174—175. Three additional District Court decisions expressly holding that the Board had reasonable cause to believe that MEBA or Local 101 was subject to § 8(b) had been decided before the issuance of the Minnesota trial court's judgment in the present litigation, although the record does not show that these were specifically brought to the court's attention.20
16
This was a case, therefore, where a state court was shown not simply the arguable possibility of Labor Board jurisdiction over the controversy before it, but that the Board had actually determined the underlying issue upon which its jurisdiction depended, i.e., that MEBA was a 'labor organization' for purposes of § 8(b) of the Act. In the absence of a showing that this position had been authoritatively rejected by the courts,21 or abandoned by the Labor Board itself, we hold that it was the duty of the state court to defer to the Board's determination.22
17
The need for protecting the exclusivity of NLRB jurisdiction is obviously greatest when the precise issue brought before a court is in the process of litigation through procedures originating in the Board. While the Board's decision is not the last word, it must assuredly be the first. In addition, when the Board has actually undertaken to decide an issue, relitigation in a state court creates more than theoretical danger of actual conflict between state and federal regulation of the same controversy.23 'Our concern' here, as it was in the Garmon case, 359 U.S., at 246, 79 S.Ct., at 780, 'is with delimiting areas * * * which must be free from state regulation if national policy is to be left unhampered.'
18
Reversed.
19
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
20
Mr. Justice DOUGLAS, dissenting.
21
While I agree with the principles announced by the Court, I disagree with the result that is reached on the facts of this case. The record contains an affidavit of the President of this union, the Marine Engineers Beneficial Association (MEBA), which states that all members of the union, including the local involved in this case, perform supervisory functions.1
An officer of MEBA testified:
22
'Local 101 of the Marine Engineers Beneficial Association is comprised of those men who are licensed as marine engineers by the United States Coast Guard, and those men who perform the engineering duties of engineers, whether or not they are licensed by the Coast Guard.'
23
The record makes clear that a licensed engineer has supervisory duties whenever there is someone working under him. That status is grounded in the historic distinction between licensed and unlicensed personnel and is shown by this record.2 A union of masters and mates would plainly be a union of supervisors and under present law not be qualified to represent ordinary seamen. If there are rare instances when an engineer on a tug, for example, is nothing more than an employee, that has not been shown in the record and is directly contrary to the affidavit of this union's president.
24
The trial court in this case said that the record 'does not show' that this MEBA Local 'admits to membership any non-supervisory employee, and in any event it is clear that its membership is composed primarily and almost exclusively of supervisors.' That finding is not challenged here. Petitioners, placing all their hopes on the words of the trial court that this local is composed 'primarily and almost exclusively of supervisors,' say it may therefore be arguably and reasonably contended that the local is a labor organization within the meaning of the Act.
25
Section 2(5) defines 'labor organization' as any organization 'in which employees participate' for the purpose 'of dealing with employers concerning grievances,' etc.
26
The word 'employee' was redefined by Congress3 following our decision in Packard Motor Car Co. v. Labor Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040, so as to exclude 'any individual employed as a supervisor.' § 2(3). And § 14(a) provides that '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.' There is not a shred of evidence in this record showing that any employee not a supervisor is a member of this union. There is therefore not a shred of evidence to show that this local of MEBA is a 'labor organization.' Since there is not, it has made no showing that it is entitled to any of the protections of the Federal Act. Such a showing is within its power to make. It apparently claims to be a 'labor organization' when it is to its advantage to do so and protests against being so labeled when that position serves its end.4
27
If it desires the protection of the Federal Act, it should be required to come forth with evidence showing who its members are. In absence of such a showing, we should not disturb the rulings of the Minnesota courts, which on this record were fully justified in enjoining the picketing. It was indeed conceded by counsel for MEBA at the trial that the purpose of the picketing was 'to improve the wages, hours and working conditions' of the 'licensed engineers,' not the wages, hours and working conditions of those few undisclosed individuals who it is now intimated may have been members of the union.
28
Since this local is not on this record a 'labor organization,' it does not come within the purview of § 8(b)(2) or § 8(b)(4), which makes certain practices, alleged to have taken place here, unfair labor practices. For § 14, quoted above, returned supervisors to the basis which they enjoyed prior to the Federal Act. A. H. Bull S.S. Co. v. National Marine Eng. B. Ass'n, 2 Cir., 250 F.2d 332.
29
It matters not that at other times this local or MEBA may have been a 'labor organization' for purposes of the Federal Act.5 Apparently an engineer may at times be only an ordinary employee.6 So for one operation this local may have members doing the work of nonsupervisory employees. Whether its status would therefore change from day-to-day or week-to-week might be presented in some case. It is not presented here, for, on a record showing only supervisors among the membership list, the union has no claim to shelter under the Federal Act.
1
'At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this Court's authority cannot remain within a State's power and state jurisdiction too must yield to the exclusive primary competence of the Board.' 359 U.S., at 244—245, 79 S.Ct., at 779.
2
The record shows that Local 101 was hardly a 'local' in the conventional sense of that term. It had branch offices not only throughout the Great Lakes area, but also in Brooklyn, San Francisco, and Houston, among other places, and there were 'approximately 35 to 40 locals in 101; some are very small, some are very large.'
3
Potential NLRB jurisdiction under § 8(b) is the only basis upon which the petitioners have claimed preemption of state court jurisdiction. See note 4, infra.
4
On November 12, 1959, the day the picketing began, § 8(b)(4)(A) provided as follows:
'It shall be an unfair labor practice for a labor organization or its agents—
'(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * *.' 29 U.S.C. § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A).
Shortly thereafter the amendments made by the Labor-Management Reporting and Disclosure Act became effective, and § 8(b)(4)(A) became § 8(b)(4)(B), 29 U.S.C. (Supp. II) § 158(b)(4)(B), 29 U.S.C.A. § 158(b)(4)(B). The here-pertinent language of the amended sections remained virtually the same.
We express no opinion on the ultimate applicability of these provisions. Compare Sailors' Union of the Pacific (Moore Dry Dock Co.), 92 N.L.R.B. 547, with National Maritime Union (Standard Oil Co.), 121 N.L.R.B. 208, enforced, 2 Cir., 274 F.2d 167. See generally, Local 761, Intern. Union of Electrical, etc., Workers v. Labor Board, 366 U.S. 667, 81 S.Ct. 1285, 61 L.Ed.2d 592.
5
The decision of Congress to forego regulation of labor relations between employers and their supervisory personnel was the product of experience under the National Labor Relations Act of 1935. The Board's assumption of jurisdiction over supervisors under the 1935 Act was approved by this Court in Packard Motor Car Co. v. Labor Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040. Congress passed the 1947 Act shortly thereafter, explicitly stating its purpose to free employers from compulsion to treat supervisory personnel as employees for the purpose of collective bargaining or organizational activity. S.Rep. No. 105, 80th Cong., 1st Sess., pp. 3—5, 28; H.R.Rep. No. 245, 80th Cong., 1st Sess., pp. 13—17.
6
Compare, e.g., Globe Steamship Co. (Great Lakes Engineers Brotherhood), 85 N.L.R.B. 475, with National Maritime Union (Standard Oil Co.), 121 N.L.R.B., at 209—210, and Graham Transp. Co. (Brotherhood of Marine Engineers), 124 N.L.R.B. 960. See generally, National Labor Relations Board v. Brown & Sharpe Mfg. Co., 5 Cir., 169 F.2d 331; National Labor Relations Board v. Edward G. Budd Mfg. Co., 6 Cir., 169 F.2d 571; Ohio Power Co. v. Labor Board, 6 Cir., 176 F.2d 385, 11 A.L.R.2d 243; National Labor Relations Board v. Quincy Steel Casting Co., 1 Cir., 200 F.2d 293. Summarizing the many federal court decisions in this area, the Court of Appeals for the First Circuit recently said, '* * * the gradations of authority 'responsibly to direct' the work of others from that of general manager or other top executive to 'straw boss' are so infinite and subtle that of necessity a large measure of informed discretion is involved in the exercise by the Board of its primary function to determine those who as a practical matter fall within the statutory definition of a 'supervisor." National Labor Relations Board v. Swift & Co., 5 Cir., 292 F.2d 561, 563.
7
See National Labor Relations Board v. Edward G. Budd Mfg. Co., supra, n. 6; International Brotherhood of Teamsters (Di Giorgio Wine Co.), 87 N.L.R.B. 720, enforced, Di Giorgio Fruit Corp. v. N.L.R.B., 89 U.S.App.D.C. 155, 191 F.2d 642, 28 A.L.R.2d 377.
8
See, e.g., National Marine Engineers Beneficial Ass'n v. Labor Board, 2 Cir., 274 F.2d 167, 173; International Organization of Masters, Mates & Pilots (Chicago Calumet Stevedoring Co.), 125 N.L.R.B. 113, 131—132.
9
See, e.g., International Organization of Masters, Mates & Pilots v. Labor Board, 48 L.R.R.M. 2624 (C.A.D.C.Cir.1960).
10
Compare International Brotherhood of Teamsters (Di Giorgio Wine Co.), 87 N.L.R.B., at 721, 743, with National Maritime Union (Standard Oil Co.), 121 N.L.R.B., at 210.
11
See Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210.
12
Cf. International Brotherhood of Teamsters (Di Giorgio Wine Co.), 87 N.L.R.B., at 741.
13
Cf. Globe Steamship Co. (Great Lakes Engineers Brotherhood), 85 N.L.R.B., at 478, 480.
14
See National Marine Engineers Beneficial Ass'n v. Labor Board, 274 F.2d, at 175, where it was said:
'We earnestly suggest to the Board that the issue whether these two unions, whose activities concern almost every ocean and inland port of the United States, are 'labor organizations' within the meaning of the National Labor Relations Act deserves more thorough treatment than it has had here. Such an investigation would not, of course, have to be performed in every case. Once the Board determined on the basis of a full inquiry that MEBA and MMP were or were not labor organizations, the Board could rely on this unless there was evidence of a change.'
15
The trial court relied, in part, upon the 1949 Labor Board decision in Globe Steamship Co., supra, n. 6, which held that certain marine engineers employed on Great Lakes vessels, including those of respondents, were 'supervisors' for the purpose of a § 9(c) election petition.
16
Respondents introduced an affidavit, filed by MEBA in a prior NLRB proceeding, in which the union claimed to represent only supervisors. This is the affidavit quoted in note 1 of the dissenting opinion, post, p. 185. But, as petitioners pointed out, the Board concluded then, and has continued of the view, that petitioners are 'labor organizations' despite such assertions.
The petitioners did not attempt to introduce specific evidence in the state court to prove that they actually represented employees who were not supervisors. Indeed, the record would seem to indicate that MEBA and Local 101 would ultimately prefer to be classified as supervisory unions outside the ambit of § 8 of the Federal Act. The actual assertion of NLRB jurisdiction over these unions, however, at the very time the state court action was pending, was more than sufficient to create an arguable case for NLRB jurisdiction under § 8. It would be entirely inconsistent with our holding in Garmon to require the unions affirmatively to abandon in the state court the position they wished to maintain before the NLRB. It would be equally inconsistent to give evidentiary weight to union affidavits dredged up from prior NLRB proceedings in which the Board rejected the union's self-characterizing claims.
17
National Maritime Union (Standard Oil Co.), supra, n. 4.
18
Graham Transp. Co. (Brotherhood of Marine Engineers), supra, n. 6. An official of Local 101 testified on direct examination that the Brotherhood of Marine Engineers 'was merged in our local' on May 29, 1959.
19
National Marine Engineers Beneficial Ass'n v. Labor Board, supra, n. 8.
20
Schauffler v. Local 101, Marine Engineers Beneficial Ass'n, D.C., 180 F.Supp. 932; Penello v. Seafarers' International Union, 164 F.Supp. 635 (D.C.E.D.Va., 1957); Douds v. Seafarers' International Union, D.C., 148 F.Supp. 953.
21
The trial court noted that the Court of Appeals for the Second Circuit had determined that MEBA was not a 'labor organization' within the meaning of § 301 of the federal statute. A. H. Bull Steamship Co. v. National Marine Engineers' Beneficial Ass'n, 2 Cir., 250 F.2d 332. This case was subsequently distinguished by the Second Circuit in a case under § 8(b), National Marine Engineers Beneficial Ass'n v. Labor Board, supra, n. 8, and in United States v. National Marine Engineers' Beneficial Ass'n, 2 Cir., 294 F.2d 385. Subsequent to the trial court's decision in the present case the Court of Appeals for the District of Columbia Circuit ordered the NLRB to take additional evidence and to reconsider its determination of a similar maritime union's status as a 'labor organization.' International Organization of Masters, Mates & Pilots v. Labor Board, supra, n. 9. At the most these court decisions would only serve to cast some doubt on the validity of the Board's determination. But even if the doubt were much more substantial, the Garmon doctrine would require a state court to decline jurisdiction of the controversy.
22
To distinguish the several NLRB decisions on the ground that each involved marine engineers whose jobs were unlike those of the respondents' engineers, as the Minnesota courts sought to do, is inconsistent with all that Garmon teaches. Such a distinction can be made only on the assumption that the relevant unit in determining what is a 'labor organization' for purposes of § 8(b) is no more than the group of employees involved in the then-pending dispute. The validity of this very assumption is currently being litigated before the Labor Board and reviewing courts. Far from having been authoritatively accepted, this limited view of the relevant unit has at least twice been expressly rejected. National Marine Engineers Beneficial Ass'n v. Labor Board, 274 F.2d, at 173, enforcing 121 N.L.R.B. 208; International Organization of Masters, Mates & Pilots (Chicago Calumet Stevedoring Co.), 125 N.L.R.B., at 131—132, remanded for reconsideration on other grounds, 48 L.R.R.M. 2624 (C.A.D.C.Cir.1960).
23
Illustrative of this danger is a recent Federal District Court decision granting an application by a Regional Director of the Board for a temporary injunction against Local 101 prohibiting organizational activity similar to that involved in the present case. Schauffler v. Local 101, Marine Engineers Beneficial Ass'n. supra, n. 20. See also other cases cited, n. 20, supra.
1
'I can state most categorically that licensed marine engineers who comprise the entire members of MEBA, without a single exception in the nature of their work, have authority in the interests of the employer for whom they may be working to hire, transfer, suspend, lay off, recall, promote, discharge, fine, reward or discipline the unlicensed personnel who work in the engine department, over which the licensed engineers have supervision or responsibility to direct such unlicensed personnel in the engine department or adjust the grievances of the unlicensed personnel in the engine department, or to effectively recommend any such action. In furtherance of their duties, licensed engineers do not exercise the authority just described merely as a routine or clerical nature, but they must exercise the use of independent judgment. Every single member of MEBA performs work of the nature which I have just described. The type of marine personnel over whom the MEBA assumes jurisdiction and takes in as members, is precisely that which I have just described We do not have any members who do not fall within such description, insofar as their duties and responsibilities are concerned.'
2
The findings state: 'All engineers and assistant engineers employed on Interlake vessels stand watches during which they are in charge of and responsible for the operation and condition of the vessel's propulsion mechanism and responsibly direct, control and supervise the work of the firemen, oilers and coal passers on duty during such watch; they hire, fire, transfer and change the status of and discipline the persons working under them and have authority to and do make effective employment and tenure of employment of employment and tenure of employment the people working under them; they handle initially grievances of the employees who are subject to their supervision; the exercise of authority by the engineers and assistant engineers requires the use of independent judgment and discretion; and all such engineers are required to be licensed by the United States Coast Guard.'
3
See H.R.Rep. No. 245, 80th Cong., 1st Sess., p. 23; S.Rep. No. 105, 80th Cong., 1st Sess., p. 28.
4
Cf. with the decision below the contentions of MEBA in National Marine Engineers Beneficial Ass'n v. Labor Board, 2 Cir., 274 F.2d 167, 170 ('MEBA says its membership is composed exclusively of supervisors') and Schauffler v. Local 101, Marine Engineers Ben. Ass'n, D.C., 180 F.Supp. 932, 935 (where the local involved in the present case argued that it was not a labor organization within the meaning of the Act). In National Organization of Masters, Mates, and Pilots of America et al., 116 N.L.R.B. 1787, MEBA admitted it was a 'labor organization' within the meaning of the Act.
5
The finding of the Labor Board in National Marine Engineers Ben. Ass'n v. Labor Board, 274 F.2d 167, that MEBA was a 'labor organization' turned on a narrow procedural point mentioned by the Court of Appeals: 'MEBA and MMP know who their members are and, if they do not know what their members do, certainly they can find out. The Board could properly have thought that the matters placed in the record by the general counsel justified an inference that nonsupervisors do participate in MEBA and MMP, and that this sufficed for the Board's finding to that effect unless they were rebutted by more convincing evidence than the unions offered here. We therefore cannot say the Board's finding that MEBA and MMP were labor organizations did not meet the standards laid down in Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.' 274 F.2d, at 175.
6
See National Marine Engineers Ben. Ass'n v. Labor Board, 274 F.2d 167, 172—173: 'The Board's general counsel did not dispute that two of the three engineers on the Franklin D. Roosevelt, the chief engineer and the relief chief engineer, were supervisors; but there was much argument whether the third should be so considered since he exercised supervisory duties only when neither the chief engineer nor the relief chief engineer was about. See N.L.R.B. v. Quincy Steel Casting Co., 1 Cir., 1952, 200 F.2d 293. The general counsel claimed that at least one of the engineers on the Sandra Marie could not have been a supervisor since he had no one to supervise. See General Foods Corporation, 110 N.L.R.B. 1088 (1954). MEBA disputed this, as well as the contention relating to the third engineer on the Franklin D. Roosevelt, claiming that these engineers were qualified and on these ships normally would have someone to supervise.'
| 910
|
370 U.S. 190
82 S.Ct. 1234
8 L.Ed.2d 430
W.M.C.A., INC., et al.v.Caroline K. SIMON et al.
No. 836.
June 11, 1962.
Leonard B. Sand and Max Gross, for appellants.
Louis J. Lefkowitz, Atty. Gen. of New York, Irving Galt, Asst. Sol. Gen., George C. Mantzoros and Gretchen W. Oberman, Asst. Attys. Gen., Sheldon Raab, Deputy Asst. Atty. Gen., Leo A. Larkin, Benjamin Offner, Bertram Harnett and Francis J. Morgan, for appellees.
PER CURIAM.
1
On January 11, 1962, the three-judge District Court dismissed the complaint alleging violation of the Constitution of the United States by New York State's constitutional and statutory provisions governing apportionment of State Senate and Assembly Districts. 202 F.Supp. 741. The three judges filed separate opinions, no two of which supported the judgment of dismissal on identical grounds. One opinion expressed the view that the action should be dismissed for failure to state a claim, want of justiciability, and want of equity. 202 F.Supp., at 742. A second opinion expressed the view that since the apportionment was not alleged to effect a discrimination against any particular racial or religious group, but merely a geographical discrimination, jurisdiction should be exercised, but only to dismiss. 202 F.Supp., at 754. A third opinion rested on the ground that the action was not justiciable and expressed no view on the merits. 202 F.Supp., at 755.
2
On March 26, 1962, we held in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, that a justiciable federal constitutional cause of action is stated by a claim of arbitrary impairment of votes by means of invidiously discriminatory geographic classification. Our well-established practice of a remand for consideration in the light of a subsequent decision therefore applies. As in Scholle v. Hare, 369 U.S. 429, 82 S.Ct. 910, we believe that the court below should be the first to consider the merits of the federal constitutional claim, free from any doubts as to its justiciability and as to the merits of alleged arbitrary and invidious geographical discrimination. The judgment is vacated and the case is remanded for further consideration in the light of Baker v. Carr, supra.
3
The motions to substitute Paul R. Screvane in the place of Abe Stark, and Eugene H. Nickerson in the place of A. Holly Patterson, as parties appellee are granted.
4
Judgment vacated and case remanded.
5
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
6
Mr. Justice HARLAN, dissenting.
7
For reasons given in my dissent in Scholle v. Hare, 369 U.S. 429, 430, 82 S.Ct. 910, 911, I would affirm or, failing that, note probable jurisdiction. The complaint in this case squarely tenders the issue as to whether the Equal Protection Clause of the Federal Constitution is violated by a state apportionment of seats in both its legislative chambers on other than a substantially proportional populational basis. As in Scholle, the lower court considered this claim on the merits and rejected it by holding that the existing distribution of New York State legislators (founded on principles embodied in the State Constitution since 1894) violated no federal constitutional right.
8
I read the opinions below quite differently than does the Court. The first opinion is that of Judge Levet, which the Court states 'expressed the view that the action should be dismissed for failure to state a claim, want of justiciability, and want of equity.' After first holding that the Court had jurisdiction over the action, Judge Levet held that 'the complaint fails to state a claim upon which relief can be granted' (202 F.Supp., at 753), in that '(t)here is no authoritative indication that the relative weight accorded individual votes in elections for the state legislature, pursuant to the applicable provisions of the State Constitution, is protected by the equal protection clause of the Fourteenth Amendment. In fact, the contrary seems true.' Id., at 749. (Emphasis added.) He then proceeded further: 'If the insufficiency of the complaint be not adequate to require dismissal of the complaint, as I believe it is, then the want of equity in the relief sought, or, to view it slightly differently, want of justiciability, clearly demands dismissal.' Id., at 753.
9
The second opinion is that of Judge Ryan, described by the Court as expressing 'the view that since the apportionment was not alleged to effect a discrimination against any particular racial or religious group, but merely a geographical discrimination, jurisdiction should be exercised, but only to dismiss.' Actually, however, Judge Ryan agreed with Judge Levet, stating at the outset of his separate opinion: 'I concur with Judge Levet and the conclusions he has reached that this Court has jurisdiction to entertain this suit and that the complaint should be dismissed on its merits.' Id., at 754. (Emphasis added.) He went on to state: 'The complaint is that the method of apportionment gives rise solely to territorial or purely geographical discrimination which grossly dilutes the vote of urban dwellers. Judicial interference by federal courts with the power of the state to create internal political or geographical boundaries affecting the right of suffrage can not be supported by mere territorial discrimination and nothing more.' Ibid. While this language, taken in connection with some of that which precedes it (ibid.), might lend itself to the view that Judge Ryan was thinking only in terms of 'justiciability,' I do not think it is properly so read. Judge Ryan nowhere suggests that he disagrees with Judge Levet's further, and distinctive, ground for dismissal, that the complaint failed to state a federal constitutional claim.
10
The third opinion, that of Judge Waterman, did, as the Court says, turn only on 'non-justiciability.' Judge Waterman declined to 'express any views with reference to whether the present legislative apportionment in the State of New York violates the Fourteenth Amendment to the United States Constitution,' id., at 755, thereby evincing his understanding that his colleagues had also rested decision on a ground which he found unnecessary to reach.
11
For me, it thus seems clear that two members of the three-judge court dismissed the action on two alternative grounds: (1) that the matter was not 'justiciable'; (2) that the complaint stated no cause of action, in that the 'territorial discrimination' existing under New York's legislative apportionment did not give rise to a claim cognizable under the Fourteenth Amendment. The latter ground was precisely the issue that was avoided in Baker v. Carr, 369 U.S. 186, 330, 82 S.Ct. 691, 771, 7 L.Ed.2d 663 (dissenting opinion); see also id., at 265, 82 S.Ct. at 736 (concurring opinion).
12
It is unfortunate that the Court, now for the second time, has remanded a case of this kind without first coming to grips itself with this basic constitutional issue, or even indicating any guidelines for decision in the lower courts. Baker v. Carr, supra, of course did neither.
| 12
|
370 U.S. 165
82 S.Ct. 1226
8 L.Ed.2d 412
Robert MORALES et al., Petitioners,v.CITY OF GALVESTON, TEXAS, et al.
No. 480.
Argued April 23 and 24, 1962.
Decided June 11, 1962.
Arthur J. Mandell, Houston, Tex., for petitioners.
Preston Shirley, Galveston, Tex., for respondent, City of Galveston.
Edward W. Watson, Galveston, Tex., for respondent, Cardigan Shipping Company, Ltd.
Mr. Justice STEWART delivered the opinion of the Court.
1
On the afternoon of March 14, 1957, the S. S. Grelmarion was berthed at Galveston, Texas, taking on a cargo of wheat from a pierside grain elevator owned and operated by the city. The wheat was being loaded directly from the elevator into the ship by means of a spout. The petitioners were longshoremen engaged in 'trimming' the wheat as it was received in the offshore bin of the vessel's No. 2 hold, which was then about three-quarters full. A last 'shot' of grain was called for and was released into the bin. The grain in this last shot had been treated with a chemical insecticide, and the petitioners were injured by fumes from the chemical, made noxious by concentration in the closely confined area where they were working.
2
The petitioners brought the present suit against the City of Galveston and the owner of the vessel to recover for their injuries.1 Their claim was predicated upon the negligence of the City and the shipowner, and upon the unseaworthiness of the ship. After an extended trial, the District Court entered judgment for the respondents, based upon detailed findings of fact, D.C., 181 F.Supp. 202, and the Court of Appeals affirmed, 5 Cir., 275 F.2d 191. On certiorari (364 U.S. 295, 81 S.Ct. 107, 5 L.Ed.2d 84) we vacated the judgment and remanded the case to the Court of Appeals for consideration in the light of Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, which had been decided in the interim. That court, one judge dissenting, was of the view that Mitchell was inapplicable to the facts of the present case, and again affirmed the District Court's judgment, 5 Cir., 291 F.2d 97. We granted certiorari to consider a seemingly significant question of admiralty law. 368 U.S. 816, 82 S.Ct. 104, 7 L.Ed.2d 23.
3
The factual issues bearing upon the alleged negligence of the City and shipowner were determined in their favor by the District Court. Specifically, the court found that the City had not itself applied the fumigant to the grain in question, and that neither of the respondents knew, or in the exercise of reasonable care should have known, that the grain had been improperly fumigated at an inland point by someone else.2 Even a cursory examination of the lengthy record shows that these findings were based upon substantial evidence. They were re-examined and affirmed on appeal.3 We cannot say that they were clearly erroneous. McAllister v. United States, 348 U.S. 19, 20—21, 75 S.Ct. 6, 99 L.Ed. 20.
4
Of greater significance in this litigation is the issue which prompted our remand to the Court of Appeals for reconsideration. Briefly stated, the question is whether, upon the facts as found by the District Court, it was error to hold that the Grelmarion was seaworthy at the time the petitioners were injured.4
5
In the Mitchell case, supra, we reversed a judgment for the defendant, because the District Court and the Court of Appeals had mistakenly imported concepts of common-law negligence into an action for unseaworthiness. There the jury had erroneously been instructed that liability for unseaworthiness could attach only if the alleged unseaworthy condition was 'there for a reasonably long period of time so that a shipowner ought to have seen that it was removed.'5 The Court of Appeals had affirmed on the theory that, at least as to an unseaworthy condition that arises during the progress of the voyage, the shipowner's obligation 'is merely to see that reasonable care is used under the circumstances * * * incident to the correction of the newly arisen defect.'6 It was alleged in that case that a ship's rail which was habitually used as a means of egress to the dock was rendered unseaworthy by the presence of slime and gurry. We did not decide the issue, but reversed for a new trial under proper criteria, holding that the shipowner's actual or constructive knowledge of the unseaworthy condition is not essential to his liability, and that he has an absolute duty 'to furnish a vessel and appurtenances reasonably fit for their intended use.' 362 U.S., at 550, 80 S.Ct. at 933.
6
In the present case the Court of Appeals was of the view that the trial judge's determination of the Grelmarion's seaworthiness at the time the petitioners were injured was in no way inconsistent with our decision in the Mitchell case. We agree. The District Judge did not, as in Mitchell, hold that unseaworthiness liability depends upon the shipowner's actual or constructive knowledge. He did not, as in Mitchell, indicate that liability may be excused if an unseaworthy condition is merely temporary. Rather, as the Court of Appeals pointed out, the trier of the facts found, upon substantial evidence, that 'the cause of the injury was not any defect in the ship but the fact that the last shot of grain which was being loaded was contaminated * * *.' 291 F.2d at 98.
7
The trial court found, upon substantial evidence, that what happened was an unexpected, isolated occurrence. Several years before there had been three, or perhaps four, incidents involving injury to longshoremen from grain which had been fumigated by the city itself. But at the time the present case arose the city had adopted a series of safety and inspection measures which made completely innocuous the grain which it fumigated, and 'vast quantities of wheat and other grains had been loaded through the elevator, some eight to ten percent of which had been fumigated by the city, without similar incident in recent years.'7 The court found that the fumes in the present case came from 'chloropicrin, an insecticide which had never been used by the respondent city.'8 The petitioners question none of these findings here. Under these circumstances we cannot say that it was error for the court to rule that the absence of a forced ventilation system in the hold did not constitute unseaworthiness.9
8
A vessel's unseaworthiness might arise from any number of individualized circumstances. Her gear might be defective, her appurtenances in disrepair, her crew unfit. The method of loading her cargo, or the manner of its stowage, might be improper. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120; Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354; Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413; Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798. For any or all of these reasons, or others, a vessel might not be reasonably fit for her intended service. What caused injury in the present case, however, was not the ship, its appurtenances, or its crew, but the isolated and completely unforeseeable introduction of a noxious agent from without. The trier of the facts ruled, under proper criteria, that the Grelmarion was not in any manner unfit for the service to which she was to be put, and we cannot say that his determination was wrong.
9
Affirmed.
10
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
11
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
12
The District Court found that the libellants were injured in 1957 as a result of a release into the hold of a 'shot' of grain that completely closed the hatch opening, which was the only source of ventilation for the hold in which they were working. This grain had been treated by chemicals for weevil infestation; and the noxious fumes from those chemicals injured libellants.
13
The vessel's cargo spaces were not equipped with a forced ventilation system. Grain vessels, the District Court found, rarely are so equipped; and it concluded that forced ventilation is 'not necessary or customary.' If this were an isolated instance of fumigated grain releasing noxious gases, no claim of unseaworthiness could be maintained. But this was not an isolated instance. Of the wheat loaded through this elevator, some 8 to 10% was fumigated by the city. Wheat is commonly fumigated either in the elevators or in railroad cars. When the fumigant is properly applied, the gases and fumes are dissipated so as not to be dangerous or harmful after 24 to 48 hours. The District Court found, however, that to the knowledge of the owners of the vessel several recent incidents like that in the present case had occurred in Galveston, causing injury to longshoremen—one in 1949, one in 1950, two in 1953.
14
A vessel without a forced ventilation system would be seaworthy if this injury were an unexpected, isolated occurrence. But I agree with Judge Rives of the Court of Appeals that the vessel and her appurtenances were not 'reasonably fit for their intended use' (291 F.2d 97, 99), where up to 10% of the grain loaded from this elevator was fumigated and where the owners had knowledge of like accidents. One 'intended service' of this vessel was, therefore, the loading of fumigated grain which in the past had given off noxious fumes. Unseaworthiness by reason of the absence of a forced ventilation system is clearer here than it was in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, where temporary slime and gurry on the ship's rail rendered it unseaworthy. The unseaworthy condition in the present case had no such temporary span. What happened here shows that the vessel was unseaworthy whenever fumigated grain was being loaded.
1
Petitioners of course received compensation and medical treatment under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq., 181 F.Supp., at 207.
2
'14. I find that neither of the respondents knew, or in the exercise of reasonable care should have known, that this quantity of grain, which had been improperly treated with an excessive amount of fumigant, was in the elevator or loaded aboard the Grelmarion; and that (for all the evidence shows here) the respondent city, in the operation of its elevator, had never received knowledge of a prior instance where chloropicrin or other fumigants applied at inland elevators had adhered to the grain sufficiently long as to present danger after receipt by the elevator.
'15. I find that the respondent city was not negligent in failing to know or learn of the presence of this quantity of grain within its elevator, in failing to make some additional inspection therefor, or in any other particular. The record shows without dispute that careful and painstaking inspections and examinations were made under governmental authority when the grain was received, and again as it was disbursed by the elevator, which in the present instance failed to detect the presence of the remaining traces of fumigant in this quantity of grain. I find that had additional inspections been made by the respondent city, there is no reason to believe that such inspections would have been more successful.
'17. I find that the Grelmarion's cargo spaces were of customary design and construction; that they were clean, and in all respects ready to receive the wheat; and had been surveyed and approved prior to loading. No fumigation for weevils was made aboard the vessel, and none was necessary. * * * I find * * * that her Captain, crew, agent, or other representatives were not negligent in any particular.' 181 F.Supp. 202, at 205—207.
3
'Careful consideration of, and reflection on, the claims and arguments of the opposing parties, in the light of the record and the controlling authorities, leaves us in no doubt that, as to the charges of negligence, there is no basis whatever for the attack here upon the findings as clearly erroneous. Indeed, we are convinced that, under an impartial and disinterested view of the evidence as a whole, the findings are well supported and wholly reasonable.' 275 F.2d, at 193.
4
The District Court and the Court of Appeals, without discussion, proceeded upon the assumption that the petitioners belonged to the class to whom the respondent shipowner owed the duty of providing a seaworthy vessel. This was correct. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143.
5
362 U.S., at 540—541, n. 2, 80 S.Ct., at 927, 928.
6
5 Cir., 265 F.2d 426, 432.
7
181 F.Supp., at 205.
8
Ibid.
9
'* * * While the Grelmarion's cargo spaces were not equipped with forced ventilation systems, I find that only very rarely is this the case on grain vessels, and that it is not necessary or customary. * * *
'The finding heretofore has been made that the noxious gases and fumes were introduced into the bin with the last 'shot' of grain, and resulted from a fumigant that had been improperly applied, and that had adhered to the grain an unsually long period of time. Under these circumstances, I find that the admission thereof into the bin of the vessel did not cause the Grelmarion to become unseaworthy, the vessel and all its appurtenances being entirely adequate and suitable in every respect.' 181 F.Supp., at 206—207.
| 78
|
370 U.S. 269
82 S.Ct. 1277
8 L.Ed.2d 484
C.J.D. RUDOLPH et al., Petitioners,v.UNITED STATES.
No. 396.
Argued April 3, 1962.
Decided June 18, 1962.
Richard A. Freling, Dallas, Tex., for petitioners.
John B. Jones, Jr., Washington, D.C., for respondent.
PER CURIAM.
1
The petition for certiorari in this case was granted because it was thought to present important questions involving the definition of 'income' and 'ordinary and necessary' business expenses under the Internal Revenue Code. 368 U.S. 913, 82 S.Ct. 195, 7 L.Ed.2d 130. An insurance company provided a trip from its home office in Dallas, Texas, to New York City for a group of its agents and their wives. Rudolph and his wife were among the beneficiaries of this trip, and the Commissioner assessed its value to them as taxable income.* It appears to be agreed between the parties that the tax consequences of the trip turn upon the Rudolphs' 'dominant motive and purpose' in taking the trip and the company's in offering it. In this regard the District Court, on a suit for a refund, found that the trip was provided by the company for 'the primary purpose of affording a pleasure trip * * * in the nature of a bonus, reward, and compensation for a job well done' and that from the point of view of the Rudolphs it 'was primarily a pleasure trip in the nature of a vacation * * *.' D.C., 189 F.Supp. 2, 4—5. The Court of Appeals approved these findings. 5 Cir., 291 F.2d 841. Such ultimate facts are subject to the 'clearly erroneous' rule, cf. Commissioner v. Duberstein, 363 U.S. 278, 289—291, 80 S.Ct. 1190, 1199, 4 L.Ed.2d 1218 (1960), and their review would be of no importance save to the litigants themselves. The appropriate disposition in such a situation is to dismiss the writ as improvidently granted. See Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 78 n. 2, 75 S.Ct. 614, 618, 99 L.Ed. 897 (1955).
2
Writ of certiorari dismissed.
3
Mr. Justice FRANKFURTER took no part in the decision of this case.
4
Mr. Justice WHITE took no part in the consideration or decision of this case.
5
Separate opinion of Mr. Justice HARLAN.
6
Although the reasons given by the Court for dismissing the writ as improvidently granted should have been persuasive against granting certiorari, now that the case is here I think it better to decide it, two members of the Court having dissented on the merits.
7
The courts below concluded (1) that the value of this 'all expense' trip to the company-sponsored insurance convention constituted 'gross income' to the petitioners within the meaning of § 61 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 61 and (2) that the amount reflected was not deductible as an 'ordinary and necessary' business expense under § 162 of the Code, 26 U.S.C.A. § 162.1 Both conclusions are, in my opinion, unassailable unless the findings of fact on which they rested are to be impeached by us as clearly erroneous. I do not think they can be on this record, especially in light of the 'seasoned and wise rule of this Court' which 'makes concurrent findings of two courts below final here in the absence of very exceptional showing of error.' Comstock v. Group of Institutional Investors, 335 U.S. 211, 214, 68 S.Ct. 1454, 1456, 92 L.Ed. 1911.
8
The basic facts, found by the District Court, are as follows. Petitioners, husband and wife, reside in Dallas, Texas, where the home office of the husband's employer, the Southland Life Insurance Company, is located. By having sold a predetermined amount of insurance, the husband qualified to attend the company's convention in New York City in 1956 and, in line with company policy, to bring his wife with him. The petitioners, together with 150 other employees and officers of the insurance company and 141 wives, traveled to and from New York City on special trains, and were housed in a single hotel during their two-and-one-half-day visit. One morning was devoted to a 'business meeting' and group luncheon, the rest of the time in New York City to 'travel, sight-seeing, entertainment, fellowship or free time.' The entire trip lasted one week.
9
The company paid all the expenses of the convention-trip which amounted to $80,000; petitioners' allocable share being $560. When petitioners did not include the latter amount in their joint income tax return, the Commissioner assessed a deficiency which was sustained by the District Court, 189 F.Supp. 2, and also by the Court of Appeals, one judge dissenting, in a per curiam opinion, 291 F.2d 841, citing its recent decision in Patterson v. Thomas, 5 Cir., 289 F.2d 108, where the same result had been reached. The District Court held that the value of the trip being 'in the nature of a bonus, reward, and compensation for a job well done,' was income to Rudolph, but being 'primarily a pleasure trip in the nature of a vacation,' the costs were personal and nondeductible.
I.
10
Under § 61 of the 1954 Code was the value of the trip to the taxpayer-husband properly includible in gross income? That section defines gross income as 'all income from whatever source derived,' including, among other items, 'compensation for services.' Certain sections of the 1954 Code enumerate particular receipts which are included in the concept of 'gross income,'2 including prizes and awards (with certain exceptions);3 while other sections, §§ 101—121, specifically exclude certain receipts from 'gross income,' including, for example, gifts and inheritances4 (see Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218), and meals or lodgings furnished for the convenience of the employer.5 The Treasury Regulations emphasize the inclusiveness of the concept of 'gross income.'6
11
In light of the sweeping scope of § 61 taxing 'all gains except those specifically exempted,' Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430, 75 S.Ct. 473, 476, 99 L.Ed. 483; see Commissioner v. Lo Bue, 351 U.S. 243, 246, 76 S.Ct. 800, 802, 100 L.Ed. 1142; James v. United States, 366 U.S. 213, 219, 81 S.Ct. 1052, 1055, 6 L.Ed.2d 246, and its purpose to include as taxable income 'any economic or financial benefit conferred on the employee as compensation, whatever the form or mode by which it is effected,' Commissioner v. Smith, 324 U.S. 177, 181, 65 S.Ct. 591, 593, 89 L.Ed. 830, it seems clear that the District Court's findings, if sustainable, bring the value of the trip within the reach of the statute.
12
Petitioners do not claim that the value of the trip is within one of the statutory exclusions from 'gross income' (see notes 4 and 5, supra) as did the taxpayer in Patterson v. Thomas, 289 F.2d 108, 111—112; rather they characterize the amount as a 'fringe benefit' not specifically excluded from § 61 by other sections of the statute, yet not intended to be encompassed by its reach. Conceding that the statutory exclusions from 'gross income' are not exhaustive, as the Government seems to recognize is so under Glenshaw, it is not now necessary to explore the extent of any such nonstatutory exclusions.7 For it was surely within the Commissioner's competence to consider as 'gross income' a 'reward, or a bonus given to * * * employees for excellence in service,' which the District Court found was the employer's primary purpose in arranging this trip. I cannot say that this finding, confirmed as it has been by the Court of Appeals, is inadequately supported by this record.8
II.
13
There remains the question whether, though income, this outlay for transportation, meals, and lodging was deductible by petitioners as an 'ordinary and necessary' besiness expense under § 162.9 The relevant factors on this branch of the case are found in Treas. Reg. § 1.162—2.10 In summary, the regulation in pertinent part provides:
14
Traveling expenses, including meals, lodgings and other incidentals, reasonable and necessary in the conduct of the taxpayer's business and directly attributable to it are deductible, but expenses of a trip 'undertaken for other than business purposes' are 'personal expenses' and the meals and lodgings are 'living expenses.' Treas.Reg. § 1.162—2(a).
15
If a taxpayer who travels to a destination engages in both 'business and personal activities,' the traveling expenses are deductible only if the trip is 'related primarily' to the taxpayer's business; if 'primarily personal,' the traveling expenses are not deductible even though the taxpayer engages in some business there; yet expenses allocable to the taxpayer's trade or business there are deductible even though the travel expenses to and fro are not.11 Id., § 1.162 2(b)(1).
16
Whether a trip is related primarily to the taxpayer's business or is primarily personal in nature 'depends on the facts and circumstances in each case.' Id., § 1.162—2(b) (2); so too with expenses paid or incurred in attending a convention. Id., § 1.162—2(d).
17
Finally, the deductibility of the expenses of a taxpayer's wife who accompanies her husband depends, first, on whether his trip is a 'business trip.' Id., § 1.162—2(c); if so, it must further be shown that the wife's presence on the trip also had a bona fide business purpose. Ibid.
18
Where, as here, it may be arguable that the trip was both for business and personal reasons, the crucial question is whether, under all the facts and circumstances of the case, the purpose of the trip was 'related primarily to business' or was, rather, 'primarily personal in nature.' That other trips to other conventions or meetings by other taxpayers were held to be primarily related to business is of no relevance here; that certain doctors, lawyers, clergymen, insurance agents or others12 have or have not been permitted similar deductions only shows that in the circumstances of those cases, the courts thought that the expenses were or were not deductible as 'related primarily to business.'
19
The husband places great emphasis on the fact that he is an entrapped 'organization man,' required to attend such conventions, and that his future promotions depend on his presence. Suffice it to say that the District Court did not find any element of compulsion; to the contrary, it found that the petitioners regarded the convention in New York City as a pleasure trip in the nature of a vacation. Again, I cannot say that these findings are without adequate evidentiary support. Supra, 370 U.S., pp. 273 274, 82 S.Ct., p. 1280.
20
The trip not having been primarily a business trip, the wife's expenses are not deductible. It is not necessary, therefore, to examine whether they would or would not be deductible if, to the contrary, the husband's trip was related primarily to business.
21
Where, as here, two courts below have resolved the determinative factual issues against the taxpayers, according to the rules of law set forth in the statute and regulations, it is not for this Court to re-examine the evidence, and disturb their findings, unless 'clearly erroneous.' That is not the situation here.
22
I would affirm.
23
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, dissenting.
I.
24
It could not, I think, be seriously contended that a professional man, say a Senator or a Congressman, who attends a convention to read a paper or conduct a seminar with all expenses paid has received 'income' within the meaning of the Internal Revenue Code. Nor would it matter, I assume, that he took his wife and that her expenses were also paid. Income has the connotation of something other than the mere payment of expenses. The statute, 26 U.S.C. § 61, 26 U.S. C.A. § 61, speaks in terms of financial gain, of compensation for services, 'including fees, commissions, and similar items.' The form of payment for services covers a wide range. Treasury Regulations § 1.61—1 provide:
25
'Gross income includes income realized in any form, whether in money, property, or services. Income may be realized, therefore, in the form of services, meals, accommodations, stock, or other property, as well as in cash.'
26
The formula 'all expenses paid' might be the disguise whereby compensation 'for services' is paid. Yet it would be a rare case indeed where one could conclude that a person who gets only his expenses for attendance at one convention gets 'income' in the statutory sense. If this arrangement were regular and frequent or if it had the earmarks of a sham device as a cloak for remuneration, there would be room for fact-finders to conclude that it was evasive. But isolated engagements of the kind here in question have no rational connection with compensation 'for services' rendered.
27
It is true that petitioner was an employee and that the expenses for attending the convention were paid by his employer. He qualified to attend the convention by selling an amount of insurance that met a quota set by the company. Other salesmen also qualified, some attending and some not attending. They went from Dallas, Texas, to New York City, where they stayed two and a half days. One day was given to a business session and a luncheon; the rest of the time was left for social events.
28
On this record there is no room for a finding of fact that the 'expenses paid' were 'for services' rendered. They were apparently a proper income tax deduction for the employer. The record is replete with evidence that from management's point of view it was good business to spend money on a convention for its leading agents—a convention that not only kept the group together in New York City, but in transit as well, giving ample time for group discussions, exchanges of experience, and educational training. It was the exigencies of the employment that gave rise to the convention. There was nothing dishonest, illegitimate, or unethical about this transaction. No services were rendered. New York City may or may not have been attractive to the agents and their wives. Whether a person enjoys or dislikes the trip that he makes 'with all expenses paid' has no more to do with whether the expenses paid were compensation 'for services' rendered than does his attitude toward his job.
29
In popular understanding a trip to a convention 'with all expenses paid' may be an award. Yet the tax laws are filled with exemptions for 'awards' which are not considered to be income. The exemption of gifts is one example. Others are the exemptions of the proceeds of life insurance payable at death, disability benefits, the rental values of parsonages, scholarship and fellowship grants, allowances of U.S. employees abroad, mustering-out payments to members of the Armed Forces, etc. Employees may receive from their employers many fringe benefits that are not income. Treasury Regulations § 31.3401(a)—1(b)(10) provide:
30
'Ordinarily, facilities or privileges (such as entertainment, medical services, or so-called 'courtesy' discounts on purchases), furnished or offered by an employer to his employees generally, are not considered as wages subject to withholding if such facilities or privileges are of relatively small value and are offered or furnished by the employer merely as a means of promoting the health, good will, contentment, or efficiency of his employees.'
31
The fringe benefits of this one convention trip are less obviously income than the fringe benefits listed in the Regulations. For the latter are constantly recurring—day after day, week after week. Moreover, on this record the convention promotes the 'efficiency' of the agents as much as the other fringe benefits enumerated in the Regulations.
II.
32
The expenses, if 'income,' are plainly deductible. The Government, however, says that our problem is to determine 'whether it is consistent with the ends of an equitable and workable tax system' to make them such. The problem of designing an 'equitable' tax system is, however, for Congress, not for the Court.
33
The test of deductibility to be applied here is whether the expenses are 'ordinary and necessary' in the carrying on of petitioner's business. The Act is explicit in permitting the deduction of traveling expenses (including the entire amount expended for meals and lodging) while away from home in the 'pursuit of a trade or business,' 26 U.S.C. § 162(a)(2), 26 U.S.C.A. § 162(a) (2).
34
The Regulations are even more explicit. Section 1.162—2(b)(1) provides:
35
'If a taxpayer travels to a destination and while at such destination engages in both business and personal activities, traveling expenses to and from such destination are deductible only if the trip is related primarily to the taxpayer's trade or business. If the trip is primarily personal in nature, the traveling expenses to and from the destination are not deductible even though the taxpayer engages in business activities while at such destination.' (Italics added.)
36
Thus, by the very terms of the Regulations a taxpayer who combines business and pleasure may deduct all 'traveling expenses,' provided the business purpose is dominant.
37
Section 1.162—2(b)(2) of the Regulations states:
38
'Whether a trip is related primarily to the taxpayer's trade or business or is primarily personal in nature depends on the facts and circumstances in each case. The amount of time during the period of the trip which is spent on personal activity compared to the amount of time spent on activities directly relating to the taxpayer's trade or business is an important factor in determining whether the trip is primarily personal. If, for example, a taxpayer spends one week while at a destination on activities which are directly related to his trade or business and subsequently spends an additional five weeks for vacation or other personal activities, the trip will be considered primarily personal in nature in the absence of a clear showing to the contrary.' Where, as here, at least one-half of the time is spent on mundane 'business' activities,1 the case is nowhere near the colorable transaction described in § 1.162—2(b)(2).
39
I see no reason to take this case out of the main stream of precedents and establish a special rule for insurance conventions. Judge Brown, dissenting in the Court of Appeals, shows how discriminatory this decision is:
40
'Deductions have been allowed as 'ordinary and necessary' to clergymen attending a church convention; to expenses of an employee attending conventions of a related business group; to a lawyer attending a meeting of the American Bar Association; to a legal secretary attending the national convention of the National Association; to physicians attending medical conventions; to certified public accountants attending conventions; to university teachers in attending conventions or scientific meetings; to professional cartoonists attending political conventions; to persons attending the Red Cross Convention; to school teachers attending summer school; to attorneys attending an institute on Federal taxation; to employees sent to refresher courses to become more acquainted with new processes in the industry; to a furniture store sending its buyers to the annual furniture mart; to representatives to annual conventions of trade associations; and to an insurance agent away from home on business.' 291 F.2d 841, 844—845.
41
Insurance conventions go back at least to 1924 (Report No. 15, Life Insurance Sales Research Bureau, Nov. 1924) and are premised on the idea that agents and companies benefit from the knowledge and increase in morale which result from them.2 Why they should be treated differently from other conventions is a mystery. It cannot be, as the district judge thought and as the Government seems to argue, because going to New York City is, as a matter of law, a 'pleasure trip.' If we are in the field of judicial notice, I would think that some might conclude that the weekend in New York City was a chore and that those who went sacrificed valuable time that might better have been spent on the farm, in the woods, or along the seashore.
42
Moreover, federal revenue agents attending their convention are given a deduction for the expenses they incur. We are advised that
43
'* * * the Commissioner has recently withdrawn his objections in two Tax Court cases to the deduction of convention expenses incurred by two IRS employees in attending conventions of the National Association of Internal Revenue Employees.
44
'No explanation has been given publicly for the Tax Court action of the Commissioner, it being generally presumed that the IRS employees met the tests of Reg. § 1.162—2(d) by showing a sufficient relationship between the trade or business of being an IRS employee and attendance at conventions of the NAIRE. The National Association of Internal Revenue Employees has hailed the Commissioner's actions as setting a precedent which can be cited by IRS employees when taking deductions for expenses incurred in attending NAIRE conventions.' CCH Standard Federal Tax Reports No. 23, April 19, 1961, pt. 1, p. 2.
45
It is odd, indeed, that revenue agents need make no accounting of the movies they saw or the nightclubs they attended, in order to get the deduction, while insurance agents must.
III.
46
The wife's expenses3 are, on this record, also deductible. The Treasury Regulations state in § 1.162—2(c):
47
'Where a taxpayer's wife accompanies him on a business trip, expenses attributable to her travel are not deductible unless it can be adequately shown that the wife's presence on the trip has a bona fide business purpose. The wife's performance of some incidental service does not cause her expenses to qualify as deductible business expenses. The same rules apply to any other members of the taxpayer's family who accompany him on such a trip.'
48
The civil law philosophy, expressed in the community property concept, attributes half of the husband's earnings to the wife—an equitable idea that at long last was reflected in the idea of income splitting under the federal income tax law.4 The wife's contribution to the business productivity of the husband in at least some activities is well known. It was specially recognized in the insurance field long before the issue of deductibility of her expenses arose under the federal income tax.5 Business reasons motivated the inclusion of wives in this particular insurance convention. An insurance executive testified at this trial:
49
'Q. I hand you Plaintiff's Exhibit 15, and you will notice it is a letter addressed to 'John Doe'; also a bulletin entitled 'A New Partner Has Been Formed.'
50
'Will you tell us what that consists of?
51
'A. This is a letter addressed to the wife of an agent, a new agent, as we make the contract with him. This letter is sent to his wife within a few days after the contract, enclosing this booklet explaining to her how she can help her husband in the life insurance business.
52
'Q. Please tell us, as briefly as you can and yet in detail, how you as agency director for Southland attempt to integrate the wives' performance with the performance of agents in the life insurance business.
53
'A. One of the important functions we have in mind is the attendance at these conventions. In addition to that communication, occasionally there are letters that will be written to the wife concerning any special sales effort that might be desired or promoted. The company has a monthly publication for the agents and employees that is mailed to their homes so the wife will have a convenient opportunity to see the magazine and read it.
54
'At most of our convention program(s), we have some specific reference to the wife's work, and in quite a few of the convention programs we have had wives appear on the program.
55
'Q. Suppose you didn't have the wives and didn't seek to require their attendance at a convention, would there be some danger that your meetings and conventions would kind of degenerate into stag affairs, where the whole purpose of the meeting would be lost?
56
'A. I think that would definitely be a tendency.'
57
I would reverse the judgments below and leave insurance conventions in the same category as conventions of revenue agents, lawyers, doctors, business men, accountants, nurses, clergymen and all others, until and unless Congress decides otherwise.
*
A joint return had been filed.
1
As I see this case, there is no need to explore whether the proper reporting procedure for a deductible expense is not to include it in income in the first place, cf. Treas.Reg. § 1.162 17(b), or to 'run it through' the taxpayer's income with an offsetting deduction in the same amount.
2
E.g., § 71 (Alimony and separate maintenance payments), § 72 (Annuities; certain proceeds of endowment and life insurance contracts), § 73 (Services of child).
3
§ 74: '(a) GENERAL RULE.—Except as provided in subsection (b) and in section 117 (relating to scholarships and fellowship grants), gross income includes amounts received as prizes and awards.
'(b) EXCEPTION.—Gross income does not include amounts received as prizes and awards made primarily in recognition of religious, charitable, scientific, educational, artistic, literary, or civic achievement, but only if—
'(1) the recipient was selected without any action on his part to enter the contest or proceeding; and
'(2) the recipient is not required to render substantial future services as a condition to receiving the prize or award.'
4
§ 102.
5
§ 119. Some of the other exclusions are § 101 (Certain death payments), § 103 (Interest on certain governmental obligations), § 104 (Compensation for injuries or sickness), § 105 (Amounts received under accident and health plans), § 113 (Mustering-out payments for members of the Armed Forces), § 117 (Scholarship and fellowship grants).
6
Treas.Reg. § 1.61—1(a) provides:
'Gross income means all income from whatever source derived, unless excluded by law. Gross income includes income realized in any form, whether in money, property, or services. Income may be realized, therefore, in the form of services, meals, accommodations, stock, or other property, as well as in cash.' See also Treas.Reg. § 1.61—2(a) (1), (d) and § 1.74—1(a).
7
Petitioners rely on § 3401 of the 1954 Code, 26 U.S.C.A. § 3401, relating to withholding taxes, and more especially on Treas.Reg. § 31.3401(a)—1(b) (10) providing that certain fringe benefits are not considered 'wages' subject to withholding. The Government admits that not all 'fringe benefits' have been taxed as income, but it is enough to point out here that the withholding tax analogy is not perfect, for payments to laid-off employees from company-financed supplemental unemployment benefit plans are 'taxable income' to the employees although not 'wages' subject to withholding. Rev.Rul. 56—249, 1956—1 Cum.Bull. 488, as amplified by Rev.Rul. 60—330, 1960—2 Cum.Bull. 46.
8
The District Court said (189 F.Supp., at 4—5):
'All of the evidence considered, we think it irrefutably leads to this conclusion: That the insurance company was just doing a gracious magnanimous thing of awarding those leading agents a trip just as much as if it had awarded them an automobile, or suit of clothes * * *.
'* * * (W)e conclude, that the trip was earned by * * * Rudolph, and was in the nature of a bonus, reward, and compensation for a job well done.'
It is pertinent to note that in addition to the facts referred to on p. 271 of 370 U.S., on p. 1279 of 82 S.Ct., supra, the record shows that company-sponsored conventions of the same kind have in recent years been held in Canada, Mexico City, Havana, Colorado and California, places well known for their appeal to tourists, and far removed from the home office in Dallas. While this factor alone does not render the expenses nondeductible, see I.R.S. News Rel. No. IR—394, August 3, 1961, it certainly was a relevant circumstance for the District Court to consider.
9
'(a) IN GENERAL.—There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—
'(2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business * * *.'
No question is raised in this case as to whether the $80,000 paid by the company for the total convention expense is deductible by the corporation.
There is no need to explore the lack of symmetry in certain 'income' and 'deductibility' areas in the 1954 Code permitting employers to provide certain 'fringe benefits' to employees—such as parking facilities, swimming pools, medical services—which have not generally been considered income to the employee, but which, if paid for by the employee with his own funds, would not be a deductible expense. The practicalities of a tax system do not demand hypothetical or theoretical perfection, and these workaday problems are properly the concern of the Commissioner, not of the Courts.
10
Although this Regulation is part of those promulgated on April 3, 1958, it is applicable to this 1956 transaction. The power to make the Regulations prospective only, Int.Rev.Code of 1954, § 7805(b), 26 U.S.C.A. § 7805(b), was not exercised, and they were made applicable to taxable years beginning after December 31, 1953. T.D. 6291, 1958—1 Cum.Bull. 63. Moreover, the result here would not be different under the prior comparable Regulation. Treas.Reg. 118, § 39.23(a)—2(a).
11
No claim has been made by the husband in this case that specific business expenses which may have been incurred at the convention in New York are deductible. The only issue is the deductibility of the entire trip expense. Compare Patterson v. Thomas, 289 F.2d 108, 114 and n. 13.
12
Deductions allowed: Coffey v. Commissioner, 21 B.T.A. 1242 (doctor); Coughlin v. Commissioner, 2 Cir., 203 F.2d 307 (lawyer); Shutter v. Commissioner, 2 B.T.A. 23 (clergyman); Callinan v. Commissioner, 12 T.C.M. 170 (legal secretary); see Rev.Rul. 59—316, 1959—2 Cum.Bull. 57; Rev.Rul. 60—16, 1960—1 Cum.Bull. 58.
Deductions not allowed: Duncan v. Commissioner, 30 T.C. 386 (doctor); Ellis v. Burnet, 60 App.D.C. 193, 50 F.2d 343 (lawyer); Reed v. Commissioner, 35 T.C. 199 (lawyer); Patterson v. Thomas, 289 F.2d 108 (insurance agent); Russell v. Commissioner, 11 T.C.M. 334 (railroad fireman).
1
The travel to and from the convention was in a group, so arranged as to develop solidarity among the agents, and to provide a continuing seminar.
2
'One of the chief things to be accomplished by a convention is to secure unanimous understanding of the principles underlying the company's sales operations and the rules which experience has proved to be essential in carrying out those principles. There is no sales organization anywhere which has a complete and unanimous grasp of these matters but a convention can do more to give the men that grasp than anything else. Home Offices are constantly under the necessity of formulating principles and rules, and they are similarly in a constant state of disappointment because they are not understood. The convention is the place above all others where this can be accomplished.
'The extent to which the Home Office arranges for transportation depends largely upon the situation of the convention city. If it is centrally located with many lines of approach, it would be impracticable to arrange for many men to meet on their way to the convention. But if the convention is to be held in an isolated spot, or one at considerable distance from the home of the majority of the members attending, then specific plans may be made for assembling at some nearer location and proceeding together to the destination. If this latter is at all feasible, it is desirable for several reasons. It gives the men a peculiar feeling of satisfaction to travel on a 'special' train or on 'special' cars, it encourages a friendlier feeling than is generally present at conventions at which the men arrive as strangers, it makes the men more anxious to get down to the real work of the convention when they arrive at their destination, and, above all, it has a decided educational value in its contacts and ever present business discussions.' Report No. 15, Life Insurance Sales Research Bureau, Nov. 1924, pp. 13, 17—18.
3
For reasons not germane to the problems of the federal income tax, the New York Superintendent of Insurance has ruled that the payment of a wife's expenses in attending an insurance convention is not permissible. N.Y.Ins.Dept.Rulings (1953), Oct. 6, 1953. And see Insurance Law, 27 McKinney's Consol.Laws of N.Y., c. 28, § 213, subdivisions 7 and 8, regulating insurance agents' competitions.
4
See H.R.Rep. No. 1274, 80th Cong., 2d Sess., pp. 1, 47.
5
'Today an ever increasing number of wives take a real interest in what their husbands do, and this interest is frequently referred to by men as being of very great value to them. In fact, it has been said that a wife can not usually be so wholly lacking in contact with her husband's work as to have no influence at all upon it.
'In many cases, this influence is negative rather than positive, and this is particularly true in the careers of many life insurance agents because their work frequently involves evening appointments—a condition usually resented by a wife. Many a wife has thoroughly discouraged her husband because the only thing which she ever knew about his work was that he had to go out at night or that he had failed to 'write that ten' which would give her a new dress. She knew nothing about the bigger things which life insurance accomplishes and of which her husband was or could be a part. The recognition of the very great desirability of 'selling' the wife on her husband's job has spread rapidly in recent years, and today many husbands are helped over the rough spots of their career by the enthusiasm and vision of their wives, much of which can be aroused or increased at a convention'. Report No. 15, supra note 2, pp. 25—26.
| 1112
|
370 U.S. 254
82 S.Ct. 1346
8 L.Ed.2d 474
DRAKE BAKERIES, INCORPORATED, Petitioner,v.LOCAL 50, AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL, AFL-CIO, etal.
No. 598.
Argued April 18, 1962.
Decided June 18, 1962.
Robert Abelow, New York City, for petitioner.
Howard N. Meyer, New York City, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The petitioning company brought this action for damages in the District Court under § 301(a) of the Taft-Hartley Act, 29 U.S.C.A. § 185(a), alleging that the respondent union had violated the no-strike clause of the collective bargaining contract between the union and the company. The sole question in the case is whether the District Court was correct in holding that the employer's claim was an arbitrable matter under the contract and in ordering a stay of the action pending completion of arbitration. The Court of Appeals for the Second Circuit affirmed the judgment of the District Court by an equally divided vote.1 This Court granted certiorari (368 U.S. 975, 82 S.Ct. 480, 7 L.Ed.2d 437), and set the cause for argument immediately following Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318.
2
The company's business is baking and selling cakes and other bakery products. On December 16, 1959, the company notified the union and its employees that because Christmas and New Year's would fall on Fridays and because it was desirable to have fresh bakery products to sell on the Mondays following the holidays, employees would not work on the Thursdays before Christmas and New Year's but would work on the Saturdays following those holidays. Meetings between the union and the company on December 18 and December 22 ensued, the company's position being that it was exercising management's prerogative in rescheduling work, the union's that the proposed work schedule violated the collective bargaining contract and that the employees were not obligated to work on December 26 or January 2. A compromise arrangement was worked out for December 26, and 80 out of 190 employees reported on that day, a sufficient number to allow production to proceed. Further conversations On December 28 were not fruitful, however, and on Saturday, January 2, the company was unable to produce its goods because only 26 employees reported for work. The company promptly filed this damage action on January 4, 1960, alleging that the union instigated and encouraged its members to strike or not to report for work on January 2, all in violation of the no-strike clause contained in the collective bargaining contract. No answer has been filed by the union but the union's affidavit in support of the motion for stay stated what its answer would contain and specifically denied that the union had instigated a strike or encouraged its members not to work on January 2.
3
As was true in Atkinson, supra, the issue of arbitrability is a question for the courts and is to be determined by the contract entered into by the parties. '* * * (A) party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409. But the contract here is much different from the agreement in Atkinson. Under Article V2 of the contract: 'The parties agree that they will promptly attempt to adjust all complaints, disputes or grievances arising between them involving questions of interpretation or application of any clause or matter covered by this contract or any act or conduct or relation between the parties hereto, directly or indirectly.'
4
This is broad language, indeed, and the procedure thereafter provided in Article V does not, as it did in Atkinson, exclude claims or complaints of the employer. It is provided that in the first instance the union will be represented by a committee and the shop chairman, and the employer by the shop manager. Failing adjustment at this stage, the issue is required to be submitted in writing by 'the party claiming to be aggrieved to the other party,' whereupon the union and the plant manager are to attempt to reach a satisfactory agreement. If agreement is not reached within seven days from the time the issue is submitted in writing, either party 'shall have the right to refer the matter to arbitration * * *.'
5
Article V does not stop with disputes 'involving questions of interpretation or application of any clause or matter' covered by the contract. The adjustment and arbitration procedures are to apply to all complaints, all disputes and all grievances involving any act of either party, or any conduct of either party, or any relation between the parties, directly or indirectly. The company asserts that there was a strike by the union in violation of the no-strike clause. It therefore has a 'complaint' against the union concerning the 'acts' or 'conduct' of the union. There is also involved a 'dispute' between the union and the company, for the union denies that there was a strike at all, denies that it precipitated any strike, denies that the employees were obligated under the contract to work on that January 2, and itself claims that the employer breached the contract in scheduling work for the holidays.3 Article V on its face easily reaches the employer's claim against the union for damages caused by an alleged strike in violation of the contract.
6
The company earnestly contends that the parties cannot have intended to arbitrate so fundamental a matter as a union strike in breach of contract, and that only an express inclusion of a damage claim by the employer would suffice to require arbitration. But it appears more reasonable to us to expect such a matter, if it is indeed so fundamental and so basic to the company under the contract, to have been excluded from the comprehensive language of Article V if the parties so intended. In Article VII,4 which contains the no-strike provisions, the parties prohibited strikes, insulated the union, its officers and members from damages for strikes which the union did not authorize, and agreed that, even in the case of unauthorized strikes, the company would arbitrate disciplinary action taken against the strikers. In the face of the comprehensive language of Article V, it would have been most appropriate at this point for the parties to have excluded from the arbitration procedures the company's claim for strike damages, if they had intended to do so. Instead, the inclusive coverage of Article V was left intact.
7
Of significance also are certain events which occurred in August 1959. At that time the company took issue with union conduct in connection with overtime work. Labeling this conduct an 'overtime strike' and a 'breach of contract,' the company wrote a letter to the State Mediation Board of New York saying that the contract with the union provided for arbitration of disputes before an arbitrator appointed by the Board and requesting the appointment of an arbitrator to 'determine the question of breach of contract and damages suffered by' the company as a result of the strike. An award of damages against the union was requested, as was injunctive relief against a continuance of the overtime strike.5 It would appear, then, that the company, just four months earlier in 1959, considered that the fundamental matter of a union-led strike was a dispute to be arbitrated under the provisions of the contract.6
8
The company further asserts that even if it agreed in the contract to arbitrate union violations of the no-strike clause, it is excused by the union's breach from pursuing the post-breach remedies called for in the contract. The company does not deny that grievance and arbitration procedures under this contract—as is true generally (United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 584, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409)—contemplate as a matter of course the arbitration of many alleged breaches of contract. Indeed, central to the company's position is its assertion that the union was bound to arbitrate, rather than strike over, its claim that the company breached the contract by scheduling Saturday work. But in its view, the union's violation of the no-strike clause is sui generis and so basic to what the employer bargained for in the contract and so inherently and 'fundamentally inconsistent with' the grievance and arbitration procedures that the faithful observance of the no-strike clause by the union is a condition precedent to the employer's duty to arbitrate (even though he has promised to do so), or that the union must be deemed to have waived, or to be estopped from asserting, its right to arbitrate.
9
However, this Court has prescribed no such inflexible rule rigidly linking no-strike and arbitration clauses of every collective bargaining contract in every situation.7 The company has not attempted, or claimed the right, either to terminate the entire contract or to extinguish permanently its obligations under the arbitration provisions. Instead, it has sued for damages for an alleged strike and, as far as this record reveals, the contract continued in effect, as did the promises of the parties to arbitrate and the promise of the union not to strike. Moreover, in this case, under this contract, by agreeing to arbitrate all claims without excluding the case where the union struck over an arbitrable matter, the parties have negatived any intention to condition the duty to arbitrate upon the absence of strikes. They have thus cut the ground from under the argument that an alleged strike, automatically and regardless of the circumstances, is such a breach or repudiation of the arbitration clause by the union that the company is excused from arbitrating, upon theories of waiver, estoppel, or otherwise.8 Arbitration provisions, which themselves have not been repudiated, are meant to survive breaches of contract, in many contexts, even total breach;9 and in determining whether one party has so repudiated his promise to arbitrate that the other party is excused the circumstances of the claimed repudiation are critically important.10 In this case the union denies having repudiated in any respect its promise to arbitrate, denies that there was a strike, denies that the employees were bound to work on January 2 and asserts that it was the company itself which ignored the adjustment and arbitration provisions by scheduling holiday work.
10
In passing § 301, Congress was interested in the enforcement of collective bargaining contracts since it would 'promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace' (S.Rep. No. 105, 80th Cong., 1st Sess. 17). It was particularly interested in placing 'sanctions behind agreements to arbitrate grievance disputes' (Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972). The preferred method for settling disputes was declared by Congress to be '(f)inal adjustment by a method agreed upon by the parties' (§ 203(d) of the Act, 29 U.S.C. § 173(d), 29 U.S.C.A. § 173(d)). 'That policy can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play' (United Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1345, 4 L.Ed.2d 1403). Under our federal labor policy, therefore, we have every reason to preserve the stabilizing influence of the collective bargaining contract in a situation such as this. We could enforce only the no-strike clause by refusing a stay in the suit for damages in the District Court. We can enforce both the no-strike clause and the agreement to arbitrate by granting a stay until the claim for damages is arbitrated. This we prefer to do.11
11
Petitioner relies upon decisions by various Courts of Appeals denying stays of damage suits for breach of no-strike clauses for want of arbitrability of the dispute.12 Most of them, however, involved far more narrowly drawn arbitration clauses than that which is involved here.13 And in at least two Court of Appeals decisions involving clauses of comparable breadth to that of the instant case, violations of no-strike clauses have been held to be arbitrable and suits for damages have been stayed pending arbitration.14
12
This Court held in Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309, that the employer did not have the right to replace employees who had struck over employer unfair labor practices, in the face of an absolute no-strike clause. It was said that, despite the broad prohibition of strikes in the contract, the parties could not have intended to waive the employees' right to strike over a flagrant unfair labor practice, absent an express statement in the contract to that effect. The company urges that Mastro precludes the result we have reached in this case. Mastro, however, involved a flagrant unfair labor practice by the company threatening the very existence of the union itself. A strike in violation of contract is not per se an unfair labor practice15 and there is no suggestion in this record that the one-day strike involved here was of that nature. We do not decide in this case that in no circumstances would a strike in violation of the no-strike clause contained in this or other contracts entitle the employer to rescind or abandon the entire contract or to declare its promise to arbitrate forever discharged or to refuse to arbitrate its damage claims against the union. We do decide and hold that Article V of this contract obligates the company to arbitrate its claims for damages from forbidden strikes by the union and that there are no circumstances in this record which justify relieving the company of its duty to arbitrate the consequences of this one-day strike, intertwined as it is with the union's denials that there was any strike or any breach of contract at all.
13
If the union did strike in violation of the contract, the company is entitled to its damages; by staying this action, pending arbitration, we have no intention of depriving it of those damages. We simply remit the company to the forum it agreed to use for processing its strike damage claims. That forum, it is true, may be very different from a courtroom,16 but we are not persuaded that the remedy there will be inadequate. Whether the damages to be awarded by the arbitrator would not normally be expected to serve as an 'effective' deterrent to future strikes, which the company urges, is not a question to be answered in the abstract or in general terms. This question, as well as what result will best promote industrial peace, can only be answered in the factual context of particular cases. Here, the union claims it did not call a strike and that the men were not bound to work on January 2, basing its claim upon years of past practice under the contract. The dispute which this record presents appears to us to be one particularly suited for arbitration, if the parties have agreed to arbitrate. We hold that they did so agree and will hold the company to its bargain.
14
A final matter is the company's suggestion that the union is not entitled to a stay because it has not proceeded with dispatch in seeking arbitration. The District Court held that the union was not in default, and we agree. If the company had a claim for damages, the contract provided for the company's attempting to adjust its claim by consulting with the union. Failing this, either party could take the matter to arbitration. The company's claim arose out of events which occurred on January 2. This case was filed on January 4. This was the first occasion for the union to insist upon its right to arbitrate the employer's claim for damages. This it promptly did by moving for a stay in the District Court.17 As its conduct shows in a previous situation, the employer was aware of the procedure to be followed.18 It should have followed it here.
15
For the foregoing reasons, the judgment affirming the opinion of the District Court was correct, and, on the merits, the panel decision properly withdrawn.
16
Affirmed.
17
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
18
Mr. Justice HARLAN, dissenting.
19
The question presented in this case is whether the parties to this collective bargaining agreement intended that a court, rather than an arbitrator, should decide the employer's claim that the union had violated the no-strike clause of the agreement. Whether a strike in breach of contract has occurred and, if so, what damages have been suffered, are matters with respect to which a court of law can hardly be deemed less competent, as an adjudicator, than an arbitrator. There is no special reason to suppose that the parties preferred to submit this kind of a dispute to an arbitrator whose expertise is more likely to be in the area of employees' grievance claims, as in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580—582, 80 S.Ct. 1347, 1351—1352, 4 L.Ed.2d 1409; United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597—598, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424. The less so, from the standpoint of the employer, when it is recognized that any damages awarded by an arbitrator would not be self-enforcing.
20
It would require more persuasive evidence than either this collective agreement or record affords to persuade me that it was contemplated that the employer would forego his statutory remedy under § 301 respecting alleged violations of the no-strike clause of the collective agreement. I would reverse the judgment below substantially for the reasons given in the panel opinion of the Court of Appeals, 287 F.2d 155.
1
The Court of Appeals originally heard the appeal before a three-judge panel, which reversed the judgment below. (287 F.2d 155). But rehearing was ordered before the active judges of the court, who divided 3—3 on the merits, and by a 4—2 vote withdrew the panel decision and affirmed the judgment below (294 F.2d 399). The priority of this procedure was questioned in the petition for certiorari, but later petitioner abandoned the question.
2
'Article V—Grievance Procedure
'(a) The parties agree that they will promptly attempt to adjust all complaints, disputes or grievances arising between them involving questions of interpretation or application of any clause or matter covered by this contract or any act or conduct or relation between the parties hereto, directly or indirectly.
'In the adjustment of such matters the Union shall be represented in the first instance by the duly designated committee and the Shop Chairman and the Employer shall be represented by the Shop Management. It is agreed that in the handling of grievances there shall be no interference with the conduct of the business.
'(b) If the Committee and the Shop Management are unable to effect an adjustment, then the issue involved shall be submitted in writing by the party claiming to be aggrieved to the other party. The matter shall then be taken up for adjustment between the Union and the Plant Manager or other representative designated by management for the purpose. If no mutually satisfactory adjustment is reached by this means, or in any event within seven (7) days after the submission of the issue in writing as provided above, then either party shall have the right to refer the matter to arbitration as herein provided.'
3
Immediately before the Christmas weekend in 1959, petitioner and respondent exchanged telegrams, in the course of which exchange respondent charged:
'We have informed you that we did not agree with, or accept your proposal to amend or alter past practice concerning holiday week-ends. Your proposed schedule and your threats of disciplinary penalties violates contract and practice * * *. If you do no retract position we shall demand arbitration.'
4
'Article VII—No Strikes
'(a) There shall be no strike, boycott, interruption of work, stoppage, temporary walk-out or lock-out for any reason during the terms of this contract except that if either party shall fail to abide by the decision of the Arbitrator, after receipt of such decision, under Article 6 of this contract, then the other party shall not be bound by this provision.
'(b) The parties agree as part of the consideration of this agreement that neither the International Union, the Local Union, or any of its officer, agents or members, shall be liable for damages for unauthorized stoppage, strikes, intentional slowdowns or suspensions of work if:
'(a) The Union gives written notice to the Company within twenty-four (24) hours of such action, copies of which shall be posted immediately by the Union on the bulletin board that it has not authorized the stoppage, strike, slowdown or suspension of work, and
'(b) if the Union further cooperates with the Company in getting the employees to return and remain at work.
'It is recognized that the Company has the right to take disciplinary action, including discharge, against any employee who engages in any unauthorized strike or work stoppage, subject to the Union's right to submit to arbitration in accordance with the agreement the question of whether or not the employee did engage in any unauthorized strike or work stoppage.'
5
Apparently the employer's thought was that the federal law should borrow the New York rule which is that an arbitrator may award relief in the nature of an injunction, enforceable in the courts regardless of the New York statute similar to the Norris-LaGuardia Act. 29 U.S.C.A. § 101 et seq. Ruppert v. Egelhofer, 3 N.Y.2d 576, 170 N.Y.S.2d 785, 148 N.E.2d 129, 70 A.L.R.2d 1048.
6
The union opposed arbitration of this dispute, claiming that there was no arbitrable controversy as to the claimed existence of an obligation to work overtime. The parties settled the controversy without conclusive determination of the arbitrability dispute.
7
We do not understand the opinions in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 923, 1 L.Ed.2d 972 or United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, to enunciate a flat and general rule that these two clauses are properly to be regarded as exact counterweights in every industrial setting, or to justify either party to the contract in wrenching them from their context in the collective agreement on the ground that they are mutually dependent covenants which are severable from the other promises between the parties.
8
In Local 174 v. Lucas Flour Co., 369 U.S. 95, 105—106, 82 S.Ct. 571, 577—578, 7 L.Ed.2d 593, it was held that a clause requiring the parties to submit disputes to final determination by arbitration implied an obligation not to strike over such disputes. Accordingly, the Court upheld an employer's § 301 breach of contract suit against the union for strike damages due to a walkout over an arbitrable dispute. In that case, unlike the present one, the union conceded that there had been a strike over a grievance which the union had agreed to submit to arbitration. The only question in dispute was liability vel non. The union did not contend that, and the Court did not consider whether, the employer's damage claim should have been taken to an arbitrator. And, of course, the Court did not consider whether the union's breach of the no-strike clause constituted a repudiation or waiver of arbitration of the damage claim.
9
See In re Pahlberg Petition, 131 F.2d 968 (C.A.2d Cir.); Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978 (C.A.2d Cir.); Pennsylvania Greyhound Lines v. Amalgamated Ass'n, 98 F.Supp. 789 (W.D.Pa.), rev'd on other grounds, 193 F.2d 327 (C.A.3d Cir.); Batter Bldg. Mats. Co. v. Kirschner, 142 Conn. 1, 110 A.2d 464; Heyman v. Darwins, Ltd., (1942) A.C. 356 (H.L.) (disapproving Jureidini v. National Br. & Ir. Ins. Co., (1915) A.C. 499, 505 (H.L.)). See also Shanferoke Coal & Supply Corp. v. Westchester Serv. Corp., 70 F.2d 297, 299 (C.A.2d Cir.), aff'd, 293 U.S. 449, 453—454, 55 S.Ct. 313, 315, 79 L.Ed. 583.
10
6 Corbin, Contracts § 1443 (1961 Supp., n. 34, pp. 192 193) states:
'The effect of a repudiation upon the repudiator's right to arbitration should depend on the character of his so-called 'repudiation' and the reasons given for it. One who flatly repudiates the provision for arbitration itself should have no right to the stay of a court action brought by the other party. But mere nonperformance, even though unjustified, is not per se a 'repudiation.' One who asserts in good faith that the facts justify him in refusing performance of other provisions in the contract should not thereby lose his right to arbitration that he would otherwise have had. There is no inconsistency in his demanding arbitration at the same time that he asserts his legal privilege not to proceed with performance.'
11
Cf. Boone v. Eyre, 1 Bl.H. 273, 126 Eng.Rep. 160 (K.B. 1777) (L. Mansfield): '* * * (W)here mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent.' See also Dermott v. Jones, 23 How. 220, 231, 16 L.Ed. 442.
12
These cases are collected in the withdrawn decision of the three-judge panel of the Court of Appeals, 287 F.2d 155, 158 n. 4. See also Vulcan- Cincinnati, Inc. v. United Steelworkers, 289 F.2d 103 (C.A.6th Cir.).
13
E.g., International Union United Furniture Workers v. Colonial Hardwood Flooring Co., 168 F.2d 33 (C.A.4th Cir.), where arbitration was limited to employee grievances over wages, hours, or working conditions, as in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318; and International Union United Automobile Workers v. Benton Harbor Indus., 242 F.2d 536 (C.A.6th Cir.); Cuneo Press, Inc. v. Kokomo Paper Handlers' Union, 235 F.2d 108 (C.A.7th Cir.), where arbitration was limited to employee grievances. But see United E., R. & M. Workers v. Miller Metal Prods., Inc., 215 F.2d 221 (C.A.4th Cir.) ('(a)ll differences, disputes and grievances that may arise between the parties to this contract with respect to the matters covered in this agreement'); Markel Elec. Prods., Inc. v. United E., R. & M. Workers, 202 F.2d 435 (C.A.2d Cir.) ('differences * * * as to the meaning and application of the provisions of this agreement, or * * * any trouble of any kind * * * in the plant').
14
Signal-Stat Corp. v. Local 475, 235 F.2d 298 (C.A.2d Cir.); Yale & Towne Mfg. Co. v. Local Lodge No. 1717, 299 F.2d 882 (C.A.3d Cir.). See id., at 883—884 n. 5, collecting authorities from lower courts. Under New York law, broad arbitration clauses permit arbitrators to award damages. See In re Publishers Ass'n, 8 N.Y.2d 414, 208 N.Y.S.2d 981, 171 N.E.2d 323.
15
International Union, United Mines Workers v. National Labor Relations Board, 103 U.S.App.D.C. 207, 257 F.2d 211; Lodge No. 12 v. Cameron Iron Works, Inc., 257 F.2d 467, 473 (C.A.5th Cir.); see Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 82 S.Ct. 519, 525, 7 L.Ed.2d 483; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 41—42, U.S.Code Cong.Service 1947, p. 1135.
16
Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S.Ct. 273, 276, 100 L.Ed. 199.
17
Compare Shanferoke Coal & Supply Corp. v. Westchester Serv. Corp., 70 F.2d 297, 299 (C.A.2d Cir., L. Hand, J.), aff'd, 293 U.S. 449, 453—454, 55 S.Ct. 313, 315, 79 L.Ed. 583, with Lane, Ltd. v. Larus & Bro. Co., 243 F.2d 364 (C.A.2d Cir.).
18
See text acompanying notes 5—6, supra.
| 67
|
370 U.S. 238
82 S.Ct. 1318
8 L.Ed.2d 462
Samuel M. ATKINSON et al., Petitioners,v.SINCLAIR REFINING COMPANY.
No. 430.
Argued April 18, 1962.
Decided June 18, 1962.
Gilbert A. Cornfield, Chicago, Ill., for petitioners.
George B. Christensen, Chicago, Ill., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The respondent company employs at its refinery in East Chicago, Indiana, approximately 1,700 men, for whom the petitioning international union and its local are bargaining agents, and 24 of whom are also petitioners here. In early February 1959, the respondent company docked three of its employees at the East Chicago refinery a total of $2.19. On February 13 and 14, 999 of the 1,700 employees participated in a strike or work stoppage, or so the complaint alleges. On March 12, the company filed this suit for damages and an injunction, naming the international and its local as defendants, together with 24 individual union member-employees.
2
Court I of the complaint, which was in three counts, stated a cause of action under § 301 of the Taft-Hartley Act (29 U.S.C. § 185, 29 U.S.C.A. § 185) against the international and its local. It alleged an existing collective bargaining agreement between the international and the company containing, among other matters, a promise by the union not to strike over any cause which could be the subject of a grievance under other provisions of the contract. It was alleged that the international and the local caused the strike or work stoppage occurring on February 13 and 14 and that the strike was over the pay claims of three employees in the amount of $2.19, which claims were properly subject to the grievance procedure provided by the contract. The complaint asked for damages in the amount of $12,500 from the international and the local.
3
Count II of the complaint purported to invoke the diversity jurisdiction of the District Court. It asked judgment in the same amount against 24 individual employees, each of whom was alleged to be a committeeman of the local union and an agent of the international, and responsible for representing the international, the local, and their members. The complaint asserted that on February 13 and 14, the individuals, 'contrary to their duty to plaintiff to abide by said contract, and maliciously confederating and conspiring together to cause the plaintiff expense and damage, and to induce breaches of the said contract, and to interfere with performance thereof by the said labor organizations and the affected employees, and to cause breaches thereof, individually and as officers, committeemen and agents of the said labor organizations, fomented, assisted and participated in a strike or work stoppage * * *.'
4
Court III of the complaint asked for an injunction but that matter need not concern us here since it is disposed of in Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328.
5
The defendants filed a motion to dismiss the complaint on various grounds and a motion to stay the action for the reasons (1) that all of the issues in the suit were referable to arbitration under the collective bargaining contract and (2) that important issues in the suit were also involved in certain grievances filed by employees and said to be in arbitration under the contract. The District Court denied the motion to dismiss Court I, dismissed Count II, and denied the motion to stay (187 F.Supp. 225). The Court of Appeals upheld the refusal to dismiss or stay Count I, but reversed the dismissal of Count II (7 Cir., 290 F.2d 312), and this Court granted certiorari (368 U.S. 937, 82 S.Ct. 376, 7 L.Ed.2d 336).
I.
6
We have concluded that Count I should not be dismissed or stayed. Count I properly states a cause of action under § 301 and is to be governed by federal law. Local 174, Teamsters, Chauffeurs, Warehousemen, and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 102—104, 82 S.Ct. 571, 576, 7 L.Ed.2d 593; Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties. 'The Congress * * * has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409. See also United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 570 571, 80 S.Ct. 1343, 1347, 4 L.Ed.2d 1403 (concurring opinion). We think it unquestionably clear that the contract here involved is not susceptible to a construction that the company was bound to arbitrate its claim for damages against the union for breach of the undertaking not to strike.
7
While it is quite obvious from other provisions of the contract1 that the parties did not intend to commit all of their possible disputes and the whole scope of their relationship to the grievance and arbitration procedures established in Article XXVI,2 that article itself is determinative of the issue in this case since it precludes arbitration boards from considering any matters other than employee grievances.3 After defining a grievance as 'any difference regarding wages, hours or working conditions between the parties hereto or between the employer and an employee covered by the working agree-hereto or between the Employer and an employee covered by this working agreement,' Article XXVI provides that the parties desire to settle employee grievances fairly and quickly and that therefore a stated procedure 'must be followed.' The individual employee is required to present his grievance to his foreman, and if not satisfied there, he may take his grievance to the plant superintendent who is to render a written decision. There is also provision for so-called Workmen's Committees to present grievances to the local management. If the local superintendent's decision is not acceptable, the matter is to be referred for discussion between the President of the International and the Director of Industrial Relations for the company (or their representatives), and for decision by the Director alone. If the Director's decision is disputed, then 'upon request of the President or any District Director' of the international, a local arbitration board may be convened and the matter finally decided by this board.
8
Article XXVI then imposes the critical limitation. It is provided that local arbitration boards 'shall consider only individual or local employee or local committee grievances arising under the application of the currently existing agreement.' There is not a word in the grievance and arbitration article provididng for the submission of grievances by the company. Instead, there is the express, flat limitation that arbitration boards should consider only employee grievances. Furthermore, the article expressly provides that arbitration may be invoked only at the option of the union. At no place in the contract does the union agree to arbitrate at the behest of the company. The company is to take its claims elsewhere, which it has now done.
9
The union makes a further argument for a stay. Following the strike, and both before and after the company filed its suit, 14 of the 24 individual defendants filed grievances claiming reimbursement for pay withheld by the employer. The union argues that even though the company need not arbitrate its claim for damages, it is bound to arbitrate these grievances; and the arbitrator, in the process of determining the grievants' right to reimbursement, will consider and determine issues which also underlie the company's claim for damages. Therefore, it is said that a stay of the court action is appropriate.
10
We are not satisfied from the record now before us, however, that any significant issue in the damage suit will be presented to and decided by an arbitrator. The grievances filed simply claimed reimbursement for pay due employees for time spent at regular work or processing grievances. Although the record is a good deal less than clear and although no answer has been filed in this case, it would appear from the affidavits of the parties presented in connection with the motion to stay that the grievants claimed to have been disciplined as a result of the work stoppage and that they were challenging this disciplinary action. The company sharply denies in its brief in this Court that any employee was disciplined. In any event, precisely what discipline was imposed, upon what grounds it is being attacked by the grievants, and the circumstances surrounding the withholding of pay from the employees are unexplained in the record. The union's brief here states that the important issue underlying the arbitration and the suit for damages is whether the grievants instigated or participated in a work stoppage contrary to the collective bargaining contract. This the company denies and it asserts that no issue in the damage suit will be settled by arbitrating the grievances.
11
The District Court must decide whether the company is entitled to damages from the union for breach of contract. The arbitrator, if arbitration occurs, must award or deny reimbursement in whole or in part to all or some of the 14 employees. His award, standing alone, obviously would determine no issue in the damage suit. If he awarded reimbursement to the employees and if it could be ascertained with any assurance4 that one of his subsidiary findings was that the 14 men had not participated in a forbidden work stoppage—the critical issue according to the union's brief—the company would nevertheless not be foreclosed in court since, even if it were bound by such a subsidiary finding made by the arbitrator, it would be free to prove its case in court through the conduct of other agents of the union. In this state of the record, the union has not made out its case for a stay.5
12
For the foregoing reasons, the lower courts properly denied the union's motion to dismiss Count I or stay it pending arbitration of the employer's damage claim.
II.
13
We turn now to Count II of the complaint, which charged 24 individual officers and agents of the union with breach of the collective bargaining contract and tortious interference with contractual relations. The District Court held that under § 301 union officers or members cannot be held personally liable for union actions, and that therefore 'suits of the nature alleged in Count II are no longer cognizable in state or federal courts.' The Court of Appeals reversed, however, ruling that 'Count II stated a cause of action cognizable in the courts of Indiana and, by diversity, maintainable in the District Court.'
14
We are unable to agree with the Court of Appeals, for we are convinced that Count II is controlled by federal law and that it must be dismissed on the merits for failure to state a claim upon which relief can be granted.
15
Under § 301 a suit for violation of the collective bargaining contract in either a federal or state court is governed by federal law (Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 102—104, 82 S.Ct. 571, 576, 7 L.Ed.2d 593; Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972), and Count II on its face charges the individual defendants with a violation of the no-strike clause. After quoting verbatim the no-strike clause, Count II alleges that the 24 individual defendants 'contrary to their duty to plaintiff to abide by' the contract fomented and participated in a work stoppage in violation of the no-strike clause. The union itself does not quarrel with the proposition that the relationship of the members of the bargaining unit to the employer is 'governed by' the bargaining agreement entered into on their behalf by the union. It is universally accepted that the no-strike clause in a collective agreement at the very least establishes a rule of conduct or condition of employment the violation of which by employees justifies discipline or discharge (Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 280 & n. 10, 76 S.Ct. 349, 356, 100 L.Ed. 309; National Labor Relations Board v. Rockaway News Supply Co., 345 U.S. 71, 80, 73 S.Ct. 519, 524, 97 L.Ed. 832; National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; National Labor Relations Board v. Draper Corp., 145 F.2d 199 (C.A. 4th Cir.); United Biscuit Co. of America v. National Labor Relations Board, 128 F.2d 771 (C.A.7th Cir.); see R. R. Donnelley & Sons Co., 5 Lab.Arb. 16; Ford Motor Co., 1 Lab.Arb. 439). The conduct charged in Count II is therefore within the scope of a 'violation' of the collective agreement.
16
As well as charging a violation of the no-strike clause by the individual defendants, Count II necessarily charges a violation of the clause by the union itself. The work stoppage alleged is the identical work stoppage for which the union is sued under Count I and the same damage is alleged as is alleged in Count I. Count II states that the individual defendants acted 'as officers, committeemen and agents of the said labor organizations' in breaching and inducing others to breach the collective bargaining contract. Count I charges the principal, and Count II charges the agents for acting on behalf of the principal. Whatever individual liability Count II alleges for the 24 individual defendants, it necessarily restates the liability of the union which is charged under Count I, since under § 301(b) the union is liable for the acts of its agents, under familiar principles of the law of agency (see also § 301(e)). Proof of the allegations of Count II in its present form would inevitably prove a violation of the no-strike clause by the union itself. Count II, like Count I, is thus a suit based on the union's breach of its collective bargaining contract with the employer, and therefore comes within § 301(a). When a union breach of contract is alleged, that the plaintiff seeks to hold the agents liable instead of the principal does not bring the action outside the scope of § 301.6
17
Under any theory, therefore, the company's action is governed by the national labor relations law which Congress commanded this Court to fashion under § 301(a). We hold that this law requires the dismissal of Count II for failure to state a claim for which relief can be granted—whether the contract violation charged is that of the union or that of the union plus the union officers and agents.
18
When Congress passed § 301, it declared its view that only the union was to be made to respond for union wrongs, and that the union members were not to be subject to levy. Section 301(b) has three clauses. One makes unions suable in the courts of the United States. Another makes unions bound by the acts of their agents according to conventional principles of agency law (cf. § 301(e)). At the same time, however, the remaining clause exempts agents and members from personal liability for judgments against the union (apparently even when the union is without assets to pay the judgment). The legislative history of § 301(b) makes it clear that this third clause was a deeply felt congessional reaction against the Danbury Hatters case (Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488; Lawlor v. Loewe, 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341), and an expression of legislative determination that the aftermath (Loewe v. Savings Bank of Danbury, 236 F. 444 (C.A.2d Cir.)) of that decision was not to be permitted to recur. In that case, an antitrust treble damage action was brought against a large number of union members, including union officers and agents, to recover from them the employer's losses in a nationwide, union-directed boycott of his hats. The union was not named as a party, nor was judgment entered against it. A large money judgment was entered, instead, against the individual defendants for participating in the plan 'emanating from headquarters' (235 U.S., at 534, 35 S.Ct., at 172), by knowingly authorizing and delegating authority to the union officers to do the acts involved. In the debates, Senator Ball, one of the Act's sponsors, declared that § 301, 'by providing that the union may sue and be sued as a legal entity, for a violation of contract, and that liability for damages will lie against union assets only, will prevent a repetition of the Danbury Hatters case, in which many members lost their homes' (93 Cong.Rec. 5014). See also 93 Cong.Rec. 3839, 6283; S.Rep.No.105, 80th Cong., 1st Sess. 16.
19
Consequently, in discharging the duty Congress imposed on us to formulate the federal law to govern § 301(a) suits, we are strongly guided by and do not give a niggardly reading to § 301(b). 'We would undercut the Act and defeat its policy if we read § 301 narrowly' (Textile Workers Union of America v. Lincoln Mills, 353 U.S., at 456, 77 S.Ct., at 917, 918). We have already said in another context that § 301(b) at least evidences 'a congressional intention that the union as an entity, like a corporation, should in the absence of agreement be the sole source of recovery for injury inflicted by it' (Lewis v. Benedict Coal Corp., 361 U.S. 459, 470, 80 S.Ct. 489, 496, 4 L.Ed.2d 442). This policy cannot be evaded or truncated by the simple device of suing union agents or members, whether in contract or tort, or both, in a separate count or in a separate action for damages for violation of a collective bargaining contract for which damages the union itself is liable. The national labor policy requires and we hold that when a union is liable for damages for violation of the no-strike clause, its officers and members are not liable for these damages. Here, Count II, as we have said, necessarily alleges union liability but prays for damages from the union agents. Where the union has inflicted the injury it alone must pay. Count II must be dismissed.7
20
The case is remanded to the District Court for further proceedings not inconsistent with this opinion. It is so ordered.
21
Case remanded to District Court with directions.
22
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT
Article XXVI provides:
'GRIEVANCE AND ARBITRATION PROCEDURE
23
'Definition
24
'1. A grievance is defined to be any difference regarding wages, hours or working conditions between the parties hereto or between the Employer and an employee covered by this working agreement which might arise within any plant or within any region of operations.
25
'Grievance Procedure
26
'It is the sincere desire of both parties that employee grievances be settled as fairly and as quickly as possible. Therefore, when a grievance arises, the following procedure must be followed:
27
'2. For the purpose of adjusting employee grievances and disputes as defined above, it is agreed that any employee, individually or accompanied by his committeeman, if desired shall:
28
'(a) Seek direct adjustment of any grievance or dispute with the foreman under whom he is employed. Such meeting will be without loss of time to the employee and/or his committeeman during regular working hours for time spent in conference with the foreman. The foreman shall reply to said employee within three (3) working days (Saturday, Sunday and Holidays excluded) from the date on which the grievance was first presented to him;
29
'(b) If the question is not then settled, the employee may submit his grievance in writing, on forms supplied by Union, to a committee selected as hereinafter provided for the particular plant or region in which such employee is employed. Such committee shall investigate said complaint and if in its opinion the grievance has merit it shall have the right to meet with the local company superintendent or his representative, who shall receive the committee for this purpose. Written decisions shall be made by the local superintendent or his representative within ten (10) days after meeting with the committee, provided that prior to the time of or at the meeting with the committee such complaint or grievance has been submitted in writing to the local superintendent or his representative.
30
'(c) In exceptional cases, Workmen's Committees shall have the right to institute grievances concerning any alleged violation of this Agreement by filing written complaint with the official locally in charge.
31
'(d) Any grievance filed with or by the local Workmen's Committee can only be withdrawn with the Workmen's Committee's consent.
32
'3. No complaint or grievance shall be considered hereunder unless it is presented to the superintendent or official locally in charge within sixty (60) days from the date on which the complaint or grievance arose, or from the date on which the employee or employees concerned first learned of the cause of complaint.
33
'4. The committee above mentioned shall be selected from among and by employees of the Employer who are members of the Union. No official, foreman, or employee having authority to hire or discharge men shall serve on the committee.
34
'5. In case of discharge or lay-off, employees who may desire to file complaints must present such complaints within one (1) week after the effective date of discharge or lay-off to the committee mentioned in this Article. Before any such employee is to be discharged for cause, other than flagrant violation of rules, or is to be laid off, he shall be given a written notice, dated and signed by his foreman or other representative of the Employer, setting forth the reason for such discharge or lay-off. In the event an employee has been discharged for a flagrant violation of a company rule, he shall subsequently, upon request, be given a written notice, dated and signed by his foreman or other representative of the Employer setting forth the reason for such discharge. The Workmen's Committee will be furnished with a copy of the statement furnished to the employee, both where the discharge or lay-off is for cause or for flagrant violation of a Company rule. Any grievance to be filed under this section must be filed within forty (40) days from the effective date of the discharge or lay-off.
35
'6. In the event the decision of the superintendent or his representative shall not be satisfactory to the committee, it is agreed that the President of the Oil, Chemical and Atomic Workers International Union, AFL-CIO, or someone designated by him, shall, not later than forty-five (45) days after such decision, have the right to confer with the Director of Industrial Relations for the Sinclair Companies, or someone designated by him, for the purpose of discussing grievances or disputes and of obtaining decisions thereon. It is agreed that the Director of Industrial Relations for the Sinclair Companies, or someone designated by him, shall render a decision to the President of the Oil, Chemical and Atomic Workers International Union, AFL-CIO, within twenty (20) days after grievances or disputes have been so submitted to him in writing.
36
'7. If such decision is not satisfactory, then, upon request of the President or any District Director of the Oil, Chemical and Atomic Workers International Union, AFL-CIO and within sixty (60) days from the posting date of the final appeal answer, there shall be set up a local Arbitration Board, and such grievances and disputes submitted to it within ten (10) days after formation of such Board. Such local boards may be set up at each refinery to deal with cases arising therefrom; cases arising from Sinclair Oil & Gas Company shall be heard and determined at Tulsa, Oklahoma; Fort Worth, Texas; Midland, Texas; or Casper, Wyoming; cases arising from Sinclair Pipe Line Company shall be heard and determined at the cities previously named or at Kansas City, Missouri; Toledo, Ohio; Houston, Texas; Chicago, Illinois; Philadelphia, Pennsylvania; or Independence, Kansas. These local Arbitration Boards shall consider only individual or local employee or local committee grievances arising under the application of the currently existing agreement, or supplements thereto, and local wage and classification disputes submitted on the initiative of the President or any District Director of the Oil, Chemical and Atomic Workers International Union, AFL-CIO. In this connection, Employer agrees to give consideration to local classification rate inequity complaints existing by reason of a comparison with the average of competitive rates of pay for like jobs having comparable duties and responsibilities being paid by agreed-upon major competitive companies in the local area. Such requests for adjustments of classification rate inequities, if any, shall be made not more frequently than twice annually, to be effective on February 1st and August 1st. Such requests to be submitted at least thirty (30) days prior to such semi-annual dates.
37
'8. The above mentioned local Arbitration Board shall be composed of one person designated by Employer and one designated by the President or District Director of the Oil, Chemical and Atomic Workers International Union, AFL-CIO. The board shall be requested by both parties to render a decision within seven (7) days from date of submission. Should the two members of the board selected as above provided, be unable to agree within seven (7) days, or to mutually agree upon an impartial third arbitrator, an impartial third member shall be selected within seven (7) days thereafter by the employer or employee member of the Arbitration Board, or such two parties jointly, requesting the Federal Mediation and Conciliation Service to submit a panel of arbitrators from which the third member of the board will be selected in accordance with the procedure of such Federal Mediation and Conciliation Service.
38
'9. The decision of the Board aforesaid, as provided in Section 8 hereof, shall be final. However, if the rules and conditions existing at the time a given case originated are subsequently changed, it is understood that the arbitration award rendered under former rules and conditions shall not act to prohibit consideration of a complaint originating under the changed rules and conditions.
39
'10. Cases arising from the Gasoline Plants shall be considered as coming within the Producing Division in which they are located.
40
'11. The fee and expense of the impartial arbitrator selected as above provided shall be divided equally between the parties to such arbitration. The Parties agree to attempt to hold the arbitrator's fees to a reasonable basis.'
1
The no-strike clause (Article III) provides that '(T)here shall be no strike * * * (1) For any cause which is or may be the subject of a grievance * * * or (2) For any other cause, except upon written notice by Union to Employer * * *.' Article XXVII, covering 'general disputes,' provides that disputes which are general in character or which affect a large number of employees are to be negotiated between the parties; there is no provision for arbitration. Moreover, the management-prerogative clause (Article XXXI) recognizes that 'operation of the Employer's facilities and the direction of the working forces, including the right to hire, suspend or discharge for good and sufficient cause and pursuant to the seniority Article of this agreement, the right to relieve employees from duties because of lack of work, are among the sole prerogatives of the Employer; provided, however, that * * * such suspensions and discharges shall be subject to the grievance and arbitration clause * * *.'
2
Article XXVI is set out in full infra, 370 U.S., at p. 250, 82 S.Ct., at p. 1325, as an Appendix.
3
We do not need to reach, therefore, the question of whether, under the contract involved here, breaches of the no-strike clause are 'grievances,' i.e., 'difference(s) regarding wages, hours or working conditions,' or are 'grievances' in the more general sense of the term. See Hoover Motor Express Co. v. Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local, No. 327, 217 F.2d 49 (C.A.6th Cir.). The present decision does not approve or disapprove the doctrine of the Hoover case or the Sixth Circuit cases following it (e.g., Vulcan-Cincinnati, Inc. v. United Steelworkers, 289 F.2d 103; International Union, United Auto Aircraft v. Benton Harbor Malleable Indus., 242 F.2d 536). See also cases collected in Yale & Towne Mfg. Co. v. Local Lodge No. 1717, 299 F.2d 882, 883—884 n. 5, 6 (C.A.3d Cir.). In Drake Bakeries, Inc. v. Local 50, 370 U.S. 254, 82 S.Ct. 1346, the question of arbitrability of a damages claim for breach of a no-strike clause is considered and resolved in favor of arbitration in the presence of an argeement to arbitrate 'all complaints, disputes or grievances arising between them (i.e., the parties) involving * * * any act or conduct or relation between the parties.'
4
Arbitrators generally have no obligation to give their reasons for an award. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424; Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S.Ct. 273, 276, 100 L.Ed. 199. The record of their proceedings is not as complete as it is in a court trial. Ibid.
5
The union also argues that the preemptive doctrine of cases such as San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, is applicable and prevents the courts from asserting jurisdiction. Since this is a § 301 suit, that doctrine is inapplicable. Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 101 n. 9, 82 S.Ct. 571, 575, 7 L.Ed.2d 593.
We put aside, since it is unnecessary to reach them, the questions of whether the employer was excused from arbitrating the damage claim because it was over breach of the no-strike clause (see Drake Bakeries, Inc. v. Local 50, 370 U.S. 254, 82 S.Ct. 1346) and whether the underlying factual or legal determination, made by an arbitrator in the process of awarding or denying reimbursement to 14 employees, would bind either the union or the company in the latter's action for damages against the union in the District Court.
6
Swift & Co. v. United Packinghouse Workers, 177 F.Supp. 511 (D.Colo.). Contra, Square D Co. v. United Elec., Radio & Machine Wkrs., 123 F.Supp. 776, 779—781 (E.D.Mich.). See also Morgan Drive Away, Inc. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America Union, 166 F.Supp. 885 (S.D.Ind.), concluding, as we do, that the complaint should be dismissed because of §§ 301(b) and 301(e), but for want of jurisdiction rather than on the merits. Our holding, however, is that the suit is a § 301 suit; whether there is a claim upon which relief can be granted is a separate question. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939.
7
In reaching this conclusion, we have not ignored the argument that Count II was drafted in order to anticipate the possible union defense under Count I that the work stoppage was unauthorized by the union, and was a wildcat strike led by the 24 individual defendants acting not in behalf of the union but in their personal and nonunion capacity. The language of Count II contradicts the argument, however, and we therefore do not reach the question of whether the count would state a proper § 301(a) claim if it charged unauthorized, individual action.
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